For The Defense, February 2012 - DRI Today

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