Want to understand more about e-discovery, other than that the “e” stands for “excitement?” Need a little light summer reading? Well, you are in luck. Never before have there been so many sources of e-discovery law.
In the old days (a few years ago), only case law dealt with the important issues that are central to e-discovery: preservation, collection, search/review, protection of privilege and production. Now these issues are addressed by federal rules, state rules, numerous scholarly best practices and guidelines, model rules and guides for judges, not to mention (and this article really doesn’t with one exception) innumerable articles and blogs.
Many of these rules, protocols and best practices are “sources” of e-discovery law, in the sense that many are mandatory and binding on you when you practice in a particular court or state, but they are also important “(re)sources” because they provide specific guidance about how to handle the core issues of e-discovery. This article provides only a basic guide to the sources and resources. The rest is up to you.
Federal Rule Amendments
Amendments to the Federal Rules of Civil Procedure addressing the discovery of electronically stored information (ESI) went into effect on December 1, 2006, and govern e-discovery practice in the federal courts. Primarily, these amendments:
- Require early attention to e-discovery issues (FRCP 16(b) and 26(f));
- Provide guidelines for limiting discovery of ESI that is not “reasonably accessible because of undue burden or cost” (FRCP 26(b)(2)(B));
- Address issues related to the format of production of ESI (FRCP 34(b));
- Establish “claw-back” procedures for inadvertently produced privileged documents (FRCP 26(b)(5)); and
- Establish a “safe harbor” that protects a party, absent exceptional circumstances, from the imposition of sanctions for “failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system” (FRCP 37(e)).1
Local Rules and Protocols
In addition to the FRCP e-discovery amendments, at least 38 U.S. District Courts have enacted special local rules addressing the discovery of ESI, which litigants in those federal courts must follow, e.g., the Eastern and Western Districts of Arkansas, the District of New Jersey, the Eastern, Middle and Western Districts of Pennsylvania, and the District of Wyoming. Although similar to the FRCP amendments that encourage early attention to electronic discovery issues, these local rules tend to go much farther and impose affirmative obligations on counsel to investigate and become knowledgeable about their clients’ computer systems.
For example, the District of New Jersey’s Local Rule 26 requires counsel to, among other things:
[R]eview with the client the client’s information management systems including computer-based and other digital systems, in order to understand how information is stored and how it can be retrieved. ... [C]ounsel shall further review with the client the client’s information files, including currently maintained computer files as well as historical, archival, back-up, and legacy computer files, whether in current or historic media or formats, such as digital evidence which may be used to support claims or defenses. Counsel shall also identify a person or persons with knowledge about the client’s information management systems, including computer-based and other digital systems, with the ability to facilitate, through counsel, reasonably anticipated discovery.
The U.S. District Courts for the Districts of Delaware, Kansas and Maryland have adopted special electronic discovery guidelines or standards to be observed by litigants appearing in their courts. The guidelines and standards essentially constitute these courts’ preferred and recommended procedures for handling electronic discovery in cases pending before them.
In some cases, where a federal district has no local rules, guidelines or court-mandated forms, individual judges have created their own forms, or set out their own preferred protocols for e-discovery. For example, the Standing Order on Protocol for Discovery of Electronically Stored Information in Civil Cases before the Honorable Frank D. Whitney, Western District of North Carolina, is available at http://www.ncwd.uscourts.gov/Documents/Whitney/StandingOrderonProtocolforDiscoveryofElectronicallyStoredInformationinCivilCases.pdf.
State Court Rules
More and more states are adopting statutes and court rules addressing the discovery of ESI, and others are actively considering whether to follow suit. In Washington, the ESI Discovery Rules Subcommittee of the WSBA Court Rules and Procedures Committee has been working for the past year on a comprehensive proposal to amend Washington’s Civil Rules to add e-discovery specific rules.
In May, the full committee took the first steps, voting to recommend amending CR 26 and CR 45 to add a claw-back provision like the one in the federal rules. Supreme Court action on these rule changes is expected later this year. Discussion of other potential amendments, which have been circulated to a number of stakeholder groups for comment, will continue into next year.
Of the 18 states that have enacted e-discovery rules, three took effect just this year: Nebraska (June 18), Iowa (May 1) and Maryland (January 1). In California, the Judicial Council unanimously voted in April to sponsor proposed legislation that would amend California’s civil discovery law to address the discovery of ESI in civil cases. Resulting Assembly Bill 926 is pending in the state’s Senate Judiciary Committee.
Other states have sought public comment on proposed e-discovery amendments, including: Alaska (comment period closed February 29); Ohio (comment period closed March 4); and Virginia (comment period closed March 15). Many of these state court provisions mirror the FRCP amendments, but some were in place years ago and are unique unto themselves. For example, Texas Rule of Civil Procedure 196.4 (Electronic or Magnetic Data), effective January 1, 1999, attempts to define the reasonable scope of electronic discovery and prescribes cost-shifting in certain cases.
Non-Binding “Best Practices” and Guidelines
In addition to mandatory federal and state court rules, other groups and organizations have come forward to offer their suggested best practices and guidelines for parties and litigators involved in e-discovery disputes.
Probably the most well-recognized of these is The Sedona Conference, a non-profit, research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation and intellectual property rights. The Sedona Conference has authored several publications that are highly regarded in the field of e-discovery and which have been cited in court decisions as offering helpful analyses of e-discovery issues.
These publications2 include:
- The Sedona Principles, Second Edition, Best Practices Recommendations and Principles for Addressing Electronic Document Production (June 2007). In this version, the language of The Sedona Principles, which first appeared in January 2004, has been modified to accommodate the language of the 2006 FRCP amendments, and the comments under each of the 14 principles have been significantly updated to reflect the new rules, a wave of recent court decisions, advances in electronic discovery technology, and a deeper appreciation among judges and lawyers for the unique qualities of ESI.
- The Sedona Conference® Commentary on ESI Evidence & Admissibility (March 2008). This document provides a brief survey of existing evidentiary rules and case law, addresses new issues and pitfalls that are looming on the horizon, and provides practical guidance on the use of ESI in depositions and in court.
- The Sedona Conference® Commentary on Email Management (August 2007). This commentary suggests guidelines for determining the core elements of an email retention policy suitable for public and private entities.
- The Sedona Conference® Commentary on Legal Holds, August 2007 Public Comment Version. This article provides guidance on the issue of when the duty to preserve is triggered and, once triggered, the scope of the obligation.
States that are still undecided about whether to enact special court rules may consider the Uniform Rules Relating to the Discovery of Electronically Stored Information, which were published by the National Conference of Commissioners on Uniform State Laws (also known as the Uniform Law Commission) in October 2007.3 The Uniform Rules mirror the spirit and direction of the FRCP e-discovery amendments, and in some cases freely adopt, often verbatim, language from both the FRCP and advisory committee comments the drafters deemed especially valuable.
In addition, the American Bar Association has included provisions addressing e-discovery in its Civil Discovery Standards (August 2004).4 The ABA has drafted standards relating to the identification and discovery of ESI (Standard 29), the use of technology to facilitate e-discovery (Standard 30), discovery conferences, privilege and technological advances (Standards 31–33). The Civil Discovery Standards offers suggestions for litigators and for judges on these issues.
Guidelines Specifically Tailored for Judges
Excellent advice for judges regarding the resolution of e-discovery disputes also is available. For judges on the federal bench there is Managing Discovery of Electronic Information: A Pocket Guide for Judges, published by the Federal Judicial Center in 2007.5 The Pocket Guide identifies problems that recur during the course of electronic discovery and presents management tools that federal judges may use for responding to them.
State court judges may consult the Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information as a reference tool. The Guidelines were approved and published by the Conference of Chief Justices in August 2006, and are intended to help in identifying the issues and determining the decision-making factors to be applied in a particular dispute.
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There are numerous sources and resources that provide a better understanding of your obligations and best practices relating to e-discovery. The last resource I’ll mention is the K&L Gates e-discovery Blog, www.ediscoverylaw.com. It has a searchable database of e-discovery case law, also an important source and resource.
Enjoy your summer reading.
Todd L. Nunn is a partner at K&L Gates in Seattle and a member of the firm’s e-Discovery Analysis and Technology Group (e-DAT). Trudy Tessaro is an attorney at K&L Gates and a member of the e-DAT Group.
1 There is a growing body of case law interpreting these e-discovery provisions, e.g., Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443 (C.D. Cal. 2007) (Rule 34(a)); Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 248 F.R.D. 556 (N.D. Ill. 2008) (Rule 34(b)); United Med. Supply Co. v. United States, 77 Fed. Cl. 257 (2007) (Rule 37(e)); Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 242 F.R.D. 139 (D.D.C. 2007) (Rule 26(b)(2)(B) and 37(e)).
2 All of The Sedona Conference publications listed here are available for free download at http://www.thesedonaconference.org/content/miscFiles/publications_html.
3 The Uniform Rules may be downloaded at http://www.law.upenn.edu/bll/archives/ulc/udoera/2007_final.htm.
4 The Civil Discovery Standards may be downloaded from the ABA’s website, free of charge, at http://www.abanet.org/litigation/discoverystandards/2004civildiscoverystandards.pdf.
5 The 26-page publication may be downloaded from the Federal Judicial Center’s website, free of charge, at http://www.fjc.gov/public/pdf.nsf/lookup/eldscpkt.pdf/$file/eldscpkt.pdf.
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