For The Defense, February 2012 - DRI Today

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Electronic Discovery From the Chair By Mark S. Sidoti A Port in the Storm of Change Providing guidance when facing the three “c”s of e-discovery evolution— complex, controversial, and constant. ■ Mark S. Sidoti, Chair of DRI’s Electronic Discovery Committee, is a director at Gibbons P.C. in the firm’s New York City office. He heads the firm’s E-Discovery Task Force and frequently publishes and lectures on e- discovery and information management best practices. He is a member of the Sedona Conference Working Group on Electronic Document Retention and Production and numerous other e- discovery organizations. 16 ■ For The Defense ■ February 2012
In the event that anyone has not noticed, the challenges of e discovery are not going away any time soon—they are just evolving. Legal educators, law firms and the judiciary are scrambling to develop programs to keep pace with this rapidly evolving area of the law. Certification courses, multi- day CLE programs, there be any new federal rulemaking in growing for changes to the FRCP. Should bench and bar mini- conferences, think this area If so, should the rules expressly tanks and webinars seem to be springing state that litigation hold be triggered only up everywhere to address the latest legal when there is a reasonable expectation of issues, rulemaking debates, and technologies of e- discovery and information man- mandate that sanctions be imposed only the certainty of litigation Should the rules agement in an increasingly digital age. in the event of willful destruction intended Often it feels—at least to me—that lawyers are “chasing their tails” when it comes tion Should the rules contain express lim- to prevent the use of information in litiga- to electronic discovery—trying to settle its regarding the types of information to be on the most effective, efficient, and reliable methods of managing the unman- custodians each side can request These preserved, and number of search terms and ageable. We are searching for solutions to and many other questions are being discussed by the preeminent thought leaders problems that often take on new and more challenging dimensions, long before even in e- discovery. the most committed of us can reach a consensus. Indeed, early predictions were that Rader of the Federal Circuit announced Also in September, Chief Judge Randall the challenges of preserving, collecting, that the Advisory Council of the Federal and evaluating huge volumes of electronic Circuit unanimously adopted a Model data for litigation, investigation, and audit Order regarding e- discovery in patent should have become more manageable with cases. Its purpose is to serve as a “starting point” for district courts to streamline advances in technology and attorney education. In light of the ever expanding role and reduce e- discovery costs, emphasizing email production limits. Under the of e- discovery in every facet of litigation, these predictions seem almost naïve in Model Order, e-mail discovery must be retrospect. The challenges are greater than phased in after initial disclosures and production of basic documentation about ever. Three recent developments are indicative of the current intense level of debate patents, prior art, accused devices and and scrutiny. financials have progressed. E-mail document requests must be propounded on In September of 2011, a specially formed subcommittee of the federal Civil Rules specific issues; global requests will not cut Committee met at a “mini- conference” in it. Among other novel—and some would Dallas to discuss approaches to rulemaking in e- discovery, including possible addi- mandates that e-mail discovery requests say, radical—approaches, the Model Order tional amendments to the Federal Rules are required to be specifically limited as to of Civil Procedure regarding preservation custodians, search terms, and timeframes, and spoliation. Numerous individuals and with only five custodians and five search organizations submitted detailed proposals terms per custodian per party permitted, on these topics for consideration, addressing the key concerns of over- preservation, Finally, just this past October, the Judi- absent a showing of distinct need. litigation hold triggers, regulation of presuit conduct, sanctions standards, and ern District of New York issued a report on cial Improvements Committee of the South- cooperation among litigants. A clear picture emerged that U.S. corporations are Case Management Techniques for Com- the initiation of a Pilot Project Regarding needlessly spending millions of dollars plex Civil Cases in that district. The pilot on preservation and e- discovery in a wide project is designed to run for 18 months variety of cases. It appears a consensus is Port in the Storm, continued on page 66 For The Defense ■ February 2012 ■ 17
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