For The Defense, February 2012 - DRI Today

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