Tuesday, August 12, 2008

U.S. Court’s Federal E-Discovery Rules

The U.S. Federal Judiciary amended its "Federal Rules of Civil Procedure", 1 December 2007, with more detail on e-discovery. The rules for "electronically stored information" (ESI) are less technically prescriptive than the Federal Court of Australia Document Management Protocol. The US Courts draft "A Practical Guide to Electronic Discovery" (January 2008) defines:
"Writable Electronic Form" means a format that allows the recipient to copy or transfer the text of the document into format that allows the recipient to copy or transfer the text of the document into the answer or response, or permits the answer or response to be typed directly into the document, and thus avoids the need to retype the text.
More useful is "A Practical Guide to Electronic Discovery Under the New Rules", by David Nuffer, United States Magistrate Judge, District of Utah (26 Jan 2008). The Judge mentions Metadata, citing "Discoverability of Metadata", Marjorie A. Shields,2006 A.L.R.6th 6 (2006).

The Judge then discusses the benefits of different formats for documents: Native, PDF Text, PDF Image, TIFF and Paper. Issues include "Need special software?", "E-Search", "Bates stamped", "Identified to original file/author", "As kept in ordinary course", "Identified to requests" and "Familiar". The table is cryptic, but seems to be saying that native formats suite metadata more, PDF and TIFF have the advantage of not needing special software, e-search can be done with native and PDF test formats, legal people need to develop expertise with the electronic formats and negotiation is needed for "Identified to original file/author", "As kept in ordinary course", "Identified to requests". There is no more detail as to what metadata may be required or how the parties exchange it.

Note: "Bates stamped" refers to "Bates numbering" (Bates stamping or Bates coding), which uses a machine to place a printed unique identifier (and optionally a date/time) on court documents. For electronic documents, this implies more than just assigning an external reference number to a document, the identifier must be bound to the document, usually by being included in the same file, so the stamp displays and prints in a similar format to a physical stamp. There are numerous add-on software products offered Bates stamping of PDF and TIFF documents.

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