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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stored information (ESI). <strong>The</strong>se rules provide<br />
a framework to litigants and judges<br />
regarding the more or less reasonable<br />
e- discovery strategies litigants have sought<br />
to employ. However, the failure of these<br />
rules and opinions to establish meaningful<br />
upper limits on the amount of ESI that<br />
parties may potentially discover represents<br />
a major shortcoming for corporate defendants<br />
in complex litigation and class actions<br />
because broad discovery impacts numerous<br />
business units, departments, records<br />
storage locations, and personnel.<br />
While state and federal rules and case<br />
law provide guidance on how to evaluate<br />
e- discovery disputes, the standard governing<br />
discovery—potentially relevant evidence—remains<br />
broad and subject only to<br />
an individual court’s decision to restrict it<br />
in a particular case. Courts often hesitate<br />
to limit discovery without definitive guidelines<br />
on when they should curtail it. <strong>The</strong>y<br />
hesitate to limit e- discovery unless one of<br />
the parties shows that the burden of compliance<br />
will have an immediate, concrete,<br />
and disabling impact. However, the impact<br />
of voluminous e- discovery presents greater<br />
challenges over time given the exponential<br />
growth of available information and the<br />
need to preserve, collect, review, produce,<br />
and store it. When courts do not closely<br />
scrutinize discovery requests, costs perpetually<br />
mount, which unfairly impacts companies<br />
in the long run.<br />
Local Rules, Guidelines,<br />
and Model Orders<br />
Bearing witness to the plight of litigants<br />
appearing before courts with some trepidation<br />
whether the courts will deem the<br />
litigants’ extensive preservation efforts<br />
adequate to address the nature and volume<br />
of discovery sought, courts and judges have<br />
proposed and adopted rules, model orders,<br />
and procedures to help define discovery<br />
obligations. As a first step, a number of<br />
courts have imposed local rules or adopted<br />
practices reinforcing requirements that the<br />
parties exchange information about electronic<br />
evidence and meet to confer early<br />
to hash out the parameters of e- discovery.<br />
<strong>For</strong> example, local rules may mandate that<br />
litigating parties affirmatively request and<br />
provide categories of the e- discovery that<br />
they will seek before having their initial<br />
conference with a court. In some forums,<br />
parties that do not reach an agreement<br />
on e- discovery may find themselves subject<br />
to a default order instead. <strong>The</strong>se steps<br />
force parties to confront their e- discovery<br />
responsibilities as early as possible and,<br />
under the best circumstances, result in<br />
acceptable e- discovery agreements that<br />
survive as long as a dispute endures. However,<br />
under less desirable circumstances,<br />
parties will not come to an agreement, perhaps<br />
because one side feels that a discovery<br />
request is too broad and another side feels<br />
that the stakes could become too high to<br />
nail down e- discovery limitations.<br />
To handle these circumstances, courts<br />
and judges have acted under their local<br />
authorities modeled on Federal Rules of<br />
Civil Procedure 26(b)(2) and 83 to place<br />
meaningful requirements and restrictions<br />
on e- discovery practice and clarify<br />
e- discovery rules. <strong>The</strong>se requirements<br />
and restrictions tackle e- discovery in different<br />
ways, ranging from adopting general<br />
guidelines often used by others or<br />
grounded in common sense practices to<br />
employing less objective standards. <strong>The</strong><br />
default e- discovery standard prepared by<br />
the Ad Hoc Committee for Electronic Discovery<br />
of the U.S. District Court for the<br />
District of Delaware and similar rules used<br />
by Judge Savage of the U.S. District Court<br />
for the Eastern District of Pennsylvania,<br />
Judge McMahon of the U.S. District Court<br />
for the Southern District of New York, as<br />
well as the U.S. District Courts for the Middle<br />
District of Tennessee and the Northern<br />
District of Ohio instructively address<br />
a variety of topics including agreements<br />
between parties, discovery limits, inadvertent<br />
production, and cost shifting. <strong>For</strong><br />
example, some orders based on this District<br />
of Delaware- originating standard have<br />
included the following:<br />
• Discovery into inaccessible systems is<br />
prohibited until discovery of accessible<br />
systems has been completed.<br />
• If sought, requests for records from<br />
inaccessible systems must be narrowly<br />
focused and include a factual basis supporting<br />
the request.<br />
• On-site inspections of electronic media<br />
are not permitted, absent exceptional<br />
circumstances.<br />
• <strong>For</strong> productions, image format is the<br />
default unless the parties agree on<br />
another.<br />
• A party must demonstrate particularized<br />
need for production of electronic<br />
documents in native format.<br />
• Electronic documents that contain privileged<br />
information must be immediately<br />
returned if the documents appear<br />
on their face to have been inadvertently<br />
produced or if there is notice of the inadvertent<br />
production.<br />
State and federal courts<br />
have implemented rules<br />
and issued opinions to<br />
assist litigants to measure<br />
their conduct against<br />
the preservation and the<br />
discovery standards.<br />
• While the costs of discovery shall ordinarily<br />
be borne by each party, costs may<br />
be apportioned upon a showing of good<br />
cause.<br />
<strong>The</strong> standard contains other provisions<br />
as well, governing the use of e- discovery<br />
liaisons and the activities of retention coordinators.<br />
<strong>The</strong> standard does not put specific<br />
limits on the volume of discovery that<br />
a party can seek, leaving this open. See D.<br />
Del., Default Standard for Discovery of Electronic<br />
Documents, http://www.ded.uscourts.<br />
gov/Announce/Policies/Policy01.htm (last visited<br />
Dec. 21, 2011).<br />
Other courts have adopted a wide variety<br />
of procedures governing e- discovery. <strong>For</strong><br />
instance, the U.S. District Court for the Middle<br />
District of Florida has well- established<br />
standards addressing e- discovery that took<br />
effect in 2001. <strong>The</strong> standards offer parties<br />
broad discretion on what they can request<br />
on both material type and scope. Parties<br />
may request that electronic information<br />
be produced in hard copy, electronic form,<br />
or both forms. And “[a] party may also<br />
ask for the production of ancillary electronic<br />
information that relates to relevant<br />
electronic documents, such as information<br />
that would indicate (i) whether and<br />
<strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>February</strong> <strong>2012</strong> ■ 31