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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Electronic Discovery<br />
Local Rules,<br />
Procedures, and<br />
Model Orders<br />
By G. Franklin McKnight<br />
and Kymberly Kochis<br />
<strong>The</strong> Progress<br />
of<br />
E-Discovery<br />
Courts have the authority<br />
to manage dockets<br />
and limit e-discovery<br />
in creative ways. Local<br />
rules provide a means to<br />
exercise this authority.<br />
Considering the vast information generated and stored by<br />
business entities today and the broad rules governing the<br />
preservation and production of electronic records, contending<br />
with electronic discovery in class action and com-<br />
plex litigation has become a burdensome<br />
and nebulous endeavor. When coupled<br />
with the threat of serious adverse consequences<br />
for failing to comply with discovery<br />
requests, aspects of e- discovery<br />
have driven potential litigants to implement<br />
“scorched earth” preservation tactics,<br />
engage in imprecise and extensive collection<br />
efforts, expansively review saved material,<br />
and produce voluminous electronic<br />
records to avoid arguments that the litigants’<br />
preservation and production efforts<br />
were anything less than satisfactory.<br />
Recognizing that litigants need guidance<br />
in this area of the law, state and federal<br />
courts have implemented rules and issued<br />
opinions to assist litigants to measure their<br />
conduct against the preservation and the<br />
discovery standards. This guidance, however,<br />
has rarely drawn reasonable outer limits<br />
on e- discovery in class action and other<br />
complex litigation. <strong>The</strong> amount and diversity<br />
of potentially discoverable information<br />
in those cases is often substantial and<br />
the overall discovery standard—potentially<br />
relevant evidence—is exceedingly broad.<br />
Aware of the problems e- discovery presents<br />
and often having addressed e- discovery<br />
disputes firsthand, some jurisdictions and<br />
judges take additional measures to attempt<br />
to control discovery.<br />
This article looks at the requirements,<br />
restrictions, pronouncements, and penalties<br />
that courts and judges have imposed<br />
or recommended regarding e- discovery<br />
practice at the local level through local<br />
rules, recommended or required procedures,<br />
and model orders. It explores the<br />
different approaches that courts have taken<br />
to guiding e- discovery such as mandating<br />
early discussion and negotiation, restricting<br />
the scope of e- discovery, and enunciating<br />
cost- shifting principles.<br />
State and Federal Rules<br />
State and federal rules of civil procedure<br />
and developing case law provide general<br />
guidance on the discovery of electronically<br />
30 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>February</strong> <strong>2012</strong><br />
■ G. Franklin McKnight IV, an associate at Nelson Levine de Luca & Horst in Blue Bell, Pennsylvania, represents<br />
insurance company clients in institutional matters and applies his understanding of technology and<br />
knowledge management to develop strategic solutions to legal concerns. He is a member of <strong>DRI</strong> and its Electronic<br />
Discovery Committee. Kymberly Kochis is a partner at Nelson Levine de Luca & Horst where she represents<br />
clients in insurance and reinsurance litigation and regulatory matters as well as corporate governance.