For The Defense, February 2012 - DRI Today

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Electronic Discovery when electronic mail was sent or opened by its recipient(s) or (ii) whether and when information was created or edited,” and “may request the software necessary to retrieve, read, or interpret electronic information.” M.D. Fla., Middle District Discovery at 21 (2001). http://www.flmd.uscourts. gov/Forms/Civil/Discovery_Practice_Manual.pdf. Helpfully, the rules also address the need The standard governing discovery… remains broad and subject only to an individual court’s decision to restrict it in a particular case. for cost shifting based on a proportionality test, as well as specifically stating that “[t]he discovering party generally should bear any special expenses incurred by the responding party in producing requested electronic information” and “the responding party generally need not incur undue burden or expense in producing electronic information, including the cost of acquiring or creating software needed to retrieve responsive electronic information for production to the other side.” Id. at 21–22. To efficiently address e- discovery disputes, Judge Virginia Kendell of the U.S. District Court for the Northern District of Illinois has implemented a case management procedure for addressing disputes involving voluminous records. Under the rule, before filing a motion to compel, the parties must meet and confer with an IT representative of the electronic storage facility to be searched to determine the most effective way to retrieve the requested material. See N.D. Ill., Case Management Practices and Procedures, http://www.ilnd.uscourts.gov/home/Judges.aspx (follow “Judge Virginia M. Kendall” link; then follow “Discovery” link) (last visited Dec.22, 2011).The party seeking the discovery must also bring its IT specialist to this meeting to discuss the proper format for 32 ■ For The Defense ■ February 2012 the retrieved records. Id. The meeting must take place in person, with both sides prepared to discuss specifically the parameters of both the search and the electronic storage facility. Id. In complex and class action litigation, although preparing for such a meeting does have costs given the myriad of storage locations, formats, the substance of the information stored, and the different means by which the information might be reasonably extracted, the preparation can benefit a company taking a position on limits to e- discovery by creating an intelligent platform for conferring on positions. Addressing the scope and accessibility of e- discovery, Magistrate Judge Michael Mahoney of the U.S. District Court for the Northern District of Illinois in a standard order of his creation, “Parties Proposed Case Management Order,” declares that the discovery of inaccessible information is per se burdensome: All formats primarily used for backup or disaster recovery purposes and any computer servers, external hard drives, notebooks, or personal computer hard drives created for disaster recovery purposes and not used in the ordinary course of business operations are presumed to present a burden which outweighs the relevancy of data preserved in such formats and need not be searched absent relevance and special need. P. Michael Mahoney, Parties Proposed Case Management Order at 3 (N.D. Ill. July 2008) (standard order), http://www.ilnd.uscourts.gov/ LEGAL/WDADR/pdf/newcmo.pdf. Similarly, without demonstrating “relevance and special need, a responding party will not be required to preserve, review or produce deleted, shadowed, fragmented or residual electronically stored information.” Id. This order places specific limitations on the discovery of backup systems and residual information using common sense while upholding the principles governing the purpose behind discovery. In discussing inaccessible electronically stored information, ESI discoverability, and which party should bear the costs of ESI discovery, the Local Uniform Civil Rules of the U.S. District Courts for the Northern and Southern District of Mississippi and the Local Rules of Court for the U.S. District Court for the Middle District of Pennsylvania position cost shifting directly at the forefront of these discussions rather than as a secondary matter that a court would consider if data accessibility is limited or if other factors, such as proportionality, favor cost shifting. See N.D. Miss. & S.D. Miss. L. Unif. Civ. R. 26(e) (Dec. 1, 2011), available at http://www.msnd. uscourts.gov/2010%20MASTER%20LOCAL%20 UNIFORM%20CIVIL%20RULES.pdf; M.D. Pa. Rules of Court R. 26.1 (Dec. 2010), available at http://www.pamd.uscourts.gov/docs/LR120110. pdf. The Mississippi federal court rules also require litigating parties seeking ESI from nonparties to “attempt to meet and confer” with those nonparties from which the litigants seek ESI. See N.D. Miss. & S.D. Miss. L. Unif. Civ. R. 45(d). Magistrate Judge Andrew J. Peck takes another approach specifically endorsing the Sedona Conference Cooperation Proclamation and requesting that counsel be familiar with the decisions in William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mutual Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009), and Mancia v. Mayflower Textiles Servs. Co., 253 F.R.D. 354 (D. Md. 2008). See also Sedona Conference Cooperation Proclamation (2008), available at http://www.thesedonaconference. org/.Those two decisions addressed various aspects of e- discovery. The first decision addressed cooperation among counsel, designing appropriate key word searches with the assistance of the appropriate personnel, and testing a search methodology before executing it. The second decision addressed various discovery violations including the failure to object to a discovery request with specificity and seeking overbroad discovery. In Mancia, the court issued an order requiring that the parties cooperate to determine the damages at issue in the case so that the court would have sufficient information to perform a proportionality analysis to quantify a workable discovery budget, a helpful concept. Similarly, the proposed Standing Order Relating to the Discovery of Electronically Stored Information developed by the Seventh Circuit Electronic Discovery Committee strongly emphasizes cooperation among parties and remaining knowledgeable about e- discovery obligations and client data. See [Proposed] Model Standing Order Relating to the Discovery of Electronically Stored Information, Seventh Circuit Electronic Discovery Pilot Pro-
gram (2011), http://www.discoverypilot.com/. The order, through defined principles, lists the e- discovery topics that parties should discuss, including the scope of preservation, how parties should identify ESI, and production format. The order also provides proportionality guidance, stating that proportionality “should be applied in each case when formulating a discovery plan” and “[t]o further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable.” Id. at 2. Additionally the order describes how parties should use knowledgeable e- discovery liaisons to resolve e- discovery disputes and provides a list of examples of ESI that parties cannot discover in most cases, such as deleted, ephemeral, and temporary data, and it strongly suggests that litigating parties should tailor e- discovery to the issues at stake pinning down the parameters during discussions among knowledgeable persons, crafting well- defined preservation and production requests, and using technology intelligently to identify potentially relevant information. Approaching the issue from a disclosure angle, the U.S. District Court for the Southern District of Florida has adopted procedures mandating the disclosure of record- keeping information relevant to e- discovery. A Discovery Practices Handbook developed by that court appended to the local rules states that a “producing party has an obligation to explain the general scheme of record- keeping to the inspecting party” to acquaint the inspecting party with how and where documents and electronically stored information is maintained. S.D. Fla. L. Rules, Appx. A, Discovery Practice Handbook at 103. Under this court’s procedures litigating parties identify these items in specific paragraphs of production requests when practicable, unless a producing party “exercises its option under Federal Rule of Civil Procedure 34(b) to produce documents as they are kept in the usual course of business.” Id. When a party produces documents in bulk, the party should identify categories, although the producing party does not have an obligation to reorganize the materials. See S.D. Fla. L. Rules, Appx. A at 104 (Dec. 1, 2011). The U.S. District Court for the District of Maryland has detailed guidelines on managing e- discovery titled Protocol for Discovery of Electronically Stored Information. At 29 pages long, the protocol describes in detail actions that parties should take to comply with their e- discovery obligations. See D. Md., Suggested Protocol for Discovery of Electronically Stored Information, available at http://www.mdd.uscourts.gov/ news/news/ESIProtocol.pdf (last visited Dec. 22, 2011). However, while the protocol provides a comprehensive overview of the complexities of e- discovery and alerts the e- discovery practitioner of the high costs of such discovery when litigation might involve extraordinary information collections, it does not suggest reasonable e- discovery restrictions and instead only suggests shifting costs. Due to the range among court e- discovery procedures, litigating parties need familiarity with more than state rules, federal rules, and case law on e- discovery: they need to know local rules, procedures, and orders as well. Local practice requirements can be relatively straightforward. For instance, a court may require early e- discovery conferring. But local requirements can also be quite complex, more akin to the U.S. District Court for the District of Maryland protocol discussed above. Practitioners should also understand that courts will move to enforce local practice when parties do not follow local practice rules. See DCG Sys., Inc. v. Checkpoint Tech., LLC, No. C-11-03792 PSG, 2011 WL 5244356 (N.D. Cal. Nov. 2, 2011) ([Model] Order Regarding E- Discovery in Patent Cases implemented, subject to further requests to modify it); Osborne v. C.H. Robinson Co., No. 08-C-50165, 2011 WL 5076267, at *8 (N.D. Ill. Oct. 25, 2011) (discovery violations found where the defendant’s “actions were not in line with the letter or spirit of the Federal Rules of Civil Procedure, the Proposed Standing Order from the Seventh Circuit, or the Sedona Principles describing best practices for electronic discovery”); Anderson v. Reliance Standard Life Ins. Co., No. WDQ-11-1188, 2011 WL 4828891, at *3 (D. Md. Oct. 11, 2011) (“Counsel are required to have read the Federal Rules of Civil Procedure, Local Rules of this Court, Discovery Guidelines of this Court (Appendix A to the Local Rules), and, with respect to discovery of Electronically Stored Information (ESI), the Suggested Protocol for Discovery of ESI”); AF Tech, Inc. v. Trumpf, Inc., No. 11-C-367, 2011 WL 4824449 (E.D. Wis. Oct. 6, 2011) (requiring the parties to comply with the Principles Relating to the Discovery of Electronically Stored Information.); Seven Seas Cruises S. De R.L. v. V. Ships Leisure SAM, No. 09-23411-CIV, 2011 WL 772855 (S.D. Fla. Feb. 19, 2011) (granting a motion to compel ESI and admonishing that the parties should have consulted section III of the Discovery Practice Handbook attached to the S.D. Fla. L. Rules). Meaningful Limitations on E-Discovery While many courts require litigating parties to address e- discovery as early as practicable in a case and to compile a laundry list of things that they will discuss, other courts have gone further. For instance, Judge Nancy F. Atlas of the U.S. District Court for the Northern District of Texas requires that the parties have a person with detailed knowledge of the particular computers and electronic databases available at all conferences addressing e- discovery disputes. As discussed above, Judge Virginia Kendell of the U.S. District Court for the Northern District of Illinois has a similar procedure. Likewise, as mentioned above, Magistrate Judge Michael Mahoney of the U.S. District Court for the Northern District of Illinois has pronounced firmly that certain inaccessible information is per se burdensome. Mahoney, Parties Proposed Case Management Order, supra. And many of the practices discussed above at least attempt to lend credence to the notion of cost shifting or dispel the taboo that using proportionality to limit discovery is unfair. A singular and extensive model order governing e- discovery in patent cases was recently proposed by Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit. Drafted by a subcommittee of the Advisory Counsel for that circuit court and designed specifically to curb the high costs associated with e- discovery in patent litigation, the model order provides concrete and objective guidance on numerous aspects of e- discovery. See Fed. Cir., An E- Discovery Model Order, available at http://www.cafc.uscourts.gov/images/ stories/announcements/Ediscovery_Model_Order. For The Defense ■ February 2012 ■ 33
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