June 2016 Bar Bulletin
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June 2016 Bar Bulletin

Your Electronic Discovery Plan: Rule 26 — Hidden Nuggets for the Savvy Litigator

By Larry G. Johnson


One of the most useful wonders of the world is the Swiss Army knife. I mean the one actually used by the Swiss Army, not the many, cute, tourist versions of same.

I got one as a present a long time ago from the family in Zurich that took me in for a year as an exchange student. But after playing with all the things tucked into the knife, I wound up using just the small blade, the corkscrew and the toothpick (I am pretty sure it was a toothpick). Unlike the ever-proficient Swiss, I chose not to take advantage of all the other tools, a number of which I could never figure out.

And so it is, I have found, with litigators who routinely ignore some really advantageous tools sitting there in Rule 26, begging to be exploited. Gold unmined!

You have a lot to gain if you take the initiative early in a case to set the agenda on discovery. That means always having in your back pocket a default discovery plan ready to send to opposing counsel that you intend to use in your first Rule 26(f) “meet-and-confer”
and to present to the judge or magistrate at the first pretrial conference.

To be more precise, you should have ready for each case an electronic discovery plan as specifically referred to in FRCP 26(f)(3)1 and as implied in Washington CR 26(f).2 That plan could be crucial, since e-discovery is unfortunately the most expensive and potentially most contentious aspect of discovery these days and the one most frequently exploited for waste and harassment by lawyers who think litigation is a war of attrition.

A Momentary Detour for
Some Background and Ammo

Below, I present you with a sample template of an electronic discovery plan with mock data for use in your practice as you see fit. But before we get there, I think you should know there are some pretty hefty policy arguments you can summon to support a discovery plan that serves the purposes of efficiency, fairness, economy and the recently renewed emphasis on the importance of proportionality in the updated FRCP 26.

And let’s remember what Rule 1 says for both federal and Washington cases: All the other rules that follow Rule 1 “should be construed, administered, and employed by the court and the parties3 to secure the just, speedy, and inexpensive determination of every action and proceeding.”

It was not that long ago when I would remind lawyers attending CLEs at which I spoke about the “just, speedy, and inexpensive” language in Rule 1. Inevitably that was cause for guffaws and “Yeah, right.” But no more. Most courts and consumers of legal services have had it with the waste and gamesmanship that once thrived unchecked in the heyday of “kitchen sink” e-discovery.

But the bench and bar have gone much farther than just curbing or sanctioning e-discovery abuses. Some innovative and well-supported initiatives were launched in recent years to come up with ideas and solutions to make e-discovery more affordable, efficient and reasonable. Notable among these are the 7th Circuit Pilot Project; the Standing Order in the 7th Circuit Pilot Project; the Sedona Conference Principles; and the Model E-Discovery Order for Patent Litigation created by the Eastern District of Texas.

Each of these initiatives is worthy of emulation and discussion, but to highlight their individual merits will have to be the subject for a future article. To read these source documents on your own, you can find and download them at www.e-dataevidence.com/Links.html.

Try Your Hand at It

Start now to create your own “model” electronic discovery plan that incorporates some or all of the good ideas welcomed by judges in the projects cited above.

Here is the text of the suggested template I promised you, which happens to comply with the federal Form 35 format, for you to use in your next case (and also downloadable at www.e-dataevidence.com/Links.html):

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