The Federal Government is Also Subject to the FRCP
During several recent eDiscovery seminars I have presented at, I have been asked the question;”Is the federal government also subject to the Federal Rules of Civil Procedure?” My answer has always been “Yes”, any entity party to a federal lawsuit is subject to the FRCP. Now I can point to a case that illustrates my opinion.
In this recent case, S.E.C. v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009), arising from claims of securities fraud, the court addressed questions concerning the government’s discovery obligations in civil discovery. Throughout discovery in the case, several disputes arose regarding the SEC’s production of documents and its failure to perform sufficiently thorough searches for the requested information. Following extensive analysis of the individual issues, the court ultimately concluded that “[w]hen a government agency initiates litigation, it must be prepared to follow the same discovery rules that govern private parties…”
The SEC’s initial production contained no email or attachments generated or received by the SEC itself. The absence of such information was explained by the SEC’s failure to undertake the appropriate search. In its defense, the SEC indicated that nearly all responsive emails would be privileged or subject to the court’s non-disclosure order and that the defendant had not made the “necessary showing” to require such a costly and time consuming undertaking. The SEC also criticized defendant’s lack of specificity in his requests which would result in searching through emails of hundreds of attorneys and accountants over an indefinite period of time.
The court rejected the SEC’s blanket refusal to produce any email without even an attempt to negotiate search terms to weed out privileged or irrelevant emails. Responding to the SEC’s representation that the cost of such a search was too high, the court suggested consideration of sampling “to test the cost and the yield” of the terms. Accordingly, the parties were ordered to meet to attempt to negotiate search terms and appropriate limitations to subject matter and date.
Upon issuing its order, the court noted that failure to agree could result in the appointment of a Special Master to supervise remaining discovery.
The key to being able to respond to a massive discovery request is to have all discoverable data archived and indexed so a complete and efficient search can be conducted. The Mimosa NearPoint Next Generation Email Archiving solution with eDiscovery capability is such a solution.
Tags: eDiscovery, FRCP, mimosa, SEC, seminar
