E- Discovery Consultant for Law Firms and Corporate Counsel   Municipal Land Use Planning and Zoning Law Estate and Probate Litigation	Matthew J. Ahearn Attorney at Law & Litigation Technology Consulting Hon. Matthew J. Ahearn (Former State Legislator pictured at his desk on the  floor of the New Jersey State Assembly in 2003) Practicing in the Following  Areas of Law: Civil and Criminal Litigation and Consulting Services on Matters Invovling E-Discovery, Internet Issues, and Forensic Computing; New Jersey Municipal Land Use Law (MLUL) and Appeals;  Contested Estate and Probate matters; Government Relations and Election Law. Municipal Court Trials, Appeals, Plea Agreements (TrafficViolations, DWI - DUI,  CDS Defenses, Speeding Tickets )   Expungement of Criminal Records. OFFICE LOCATIONS Bergen County, New Jersey 6 BEEKMAN PLACE FAIR LAWN, NJ 07410 Morris County, New Jersey 17 HANOVER ROAD, SUITE 230 FLORHAM PARK, NJ 07932 E-MAIL:  mattahearn@mattahearn.com Tel:   (201)-703-1170 Attorney Advertising Disclaimer	Municipal Court Matters Traffic Violations Drunk Driving Attorney Profiles Matt Ahearn Brian D. Burns (of Counsel)
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Early Consideration of ESI Rules 26(f) and 16
Exchanging information in electronic form has significant benefits
it can substantially reduce copying, transport, and storage costs; enable the requesting party to more easily review, organize, and manage information; facilitate the use of computerized litigation support systems; and set the stage for the use of digital evidence presentation systems during pretrial and trial proceedings. To ensure
that these benefits are achieved and any problems associated with ESI are minimized, attorneys and parties should address ESI in the earliest stages of litigation, and judges should encourage them to do so.
All too often, attorneys view their obligation to meet and confer
under Federal Rule of Civil Procedure 26(f) as a perfunctory exercise.
When ESI is involved, judges should insist that a meaningful Rule 26(f) conference take place and that a meaningful discovery plan be submitted. Amended Rule 26(f) directs parties to discuss any issues relating to disclosure or discovery of ESI, including the form or forms in which it should be produced. More specifically, the parties should inquire into whether there will be discovery of ESI at all; what information each party has in electronic form and where that information resides; whether the information to be discovered has been deleted or is available only on backup tapes or legacy systems; the anticipated schedule for production and the format and media of that production; the difficulty and cost of producing
Managing Discovery of Electronic Information
the information

A proposed new Federal Rule of Evidence 502 was published for comment in August 2006. It (1) provides that inadvertent disclosure of privileged or protected information in connection with a federal proceeding constitutes a waiver only if the party did not take reasonable precautions to prevent disclosure and did not make reasonable and prompt efforts to rectify the error; (2) provides that when a confidentiality
order governing disclosure is entered in a federal proceeding, according to terms agreed to by the parties, the orders terms are enforceable against nonparties
in any other federal or state proceedings; and (3) codifies the proposition that parties can enter an agreement to limit the effect of waiver by disclosure between or among themselves, and makes clear that if the parties want protection from a finding
of waiver by disclosure in separate litigation, the agreement must be made part of a court order. The proposed rule also limits the circumstances in which a subject-matter waiver should be found and includes a provision on selective waiver.
Managing Discovery of Electronic Information 17
tion of discoverable information, particularly with respect to ESI because of its dynamic, mutable nature. In doing so, parties should attempt to balance the need to preserve relevant information and the need to continue routine computer operations critical to a party’s
activities.
The court may help ensure that parties meet their responsibilities
for preserving information and avoid allegations of spoliation by reviewing with them steps for establishing and implementing an effective data-preservation policy. These include (1) allowing the partys discovery liaison to readily describe information systems,
storage, and retention policies to the opposing party and the court; (2) interviewing key employees to determine sources of information;
(3) affirmatively and repeatedly communicating litigation
holds to all affected parties and monitoring compliance on an ongoing basis; (4) integrating discovery responsibilities with routine
retention policies; (5) actively managing and monitoring document
collections; (6) thoroughly documenting and demonstrating the efficacy of the preservation process; and (7) preparing to take responsibility for ensuring that information is preserved, collected, and produced.23
In some cases, a preservation order that clearly defines the obligations
of the producing party

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