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