For The Defense, February 2012 - DRI Today

Electronic Discovery
pdf (last visited Dec. 28, 2011).For instance,
the model order is strict on e-mail: general
ESI production requests do not include
e-mail. Id. at 2.To obtain e-mail, the party
that wants it must make specific e-mail
production requests on specific issues. Id.
Requesting parties must provide custodian
names, search terms, and time frames
in these requests. Id. at 3. A requesting
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.
34 ■ For The Defense ■ February 2012
party has to wait until after litigating parties
exchange initial disclosures and basic
documentation before making e-mail discovery
requests. Id. at 2–3. Also, beyond
identifying sent and receive dates and
times and distribution information, general
production requests would not include
metadata unless the party that wants it
demonstrates good cause. Id. at 2.
The model order specifically limits the
number of custodians or search terms
that a party can seek, an approach that
commentators frequently characterize as
inappropriate because it reflects a one-sizefits-all
approach to cases. This model order
restricts the number of custodians to five
per producing party and the search terms
to five per custodian. Id. at 3.Under this
order a court will consider requests for discovery
of more custodians or search terms,
but failing to seek the court’s blessing will
result in the requesting party bearing all
reasonable costs caused by the additional
discovery. Id. at 3–4. This last provision is
worth noting because it does not prohibit
requests for information outside of the confines
of the order outright, but it does specifically
require that the requesting party
pay for the information.
In addition to limiting the number of
search terms, the model order specifies
that parties must use search terms narrowly
to specific issues. Id. Parties must
combine terms that could produce overly
broad search results with narrowing search
criteria. Id.
The model order goes even further: the
mass production of ESI will not constitute
a waiver for any purpose. The order reiterates
Federal Rule of Evidence 502(d) that
inadvertent production of privileged ESI
is not a waiver in any other federal or state
proceeding, and a party receiving inadvertently
produced and privileged ESI may not
use it to challenge the privilege or protection.
Id. at 4. And this model rule boldly
states that costs will be shifted for disproportionate
ESI production requests, and
the court will take nonresponsive or dilatory
discovery tactics into consideration
when evaluating cost shifting. Id. at 2.
Clearly, in patent lawsuits, the U.S.
Court of Appeals for the Federal Circuit
recognizes that “disproportionate expense
should not be permitted to force those
accused of infringement to acquiesce to
nonmeritorious claims” and has taken considerable
steps to protect parties against
such claims. Id. at 2.The same circumstances
arise in other litigation arenas,
particularly in complex and class action litigation.
Although the model order speaks
in terms of patent litigation, it does transfer
well to other litigation where “routine
requests seeking all categories of ESI often
result in mass productions of marginally
relevant and cumulative documents” and
“the production burden of these expansive
requests outweighs the minimal benefits of
such broad disclosure.” Id.
The introduction to the model order
notes that “district courts have inherent
power to control their dockets to further
‘economy of time and effort for itself, for
counsel and for litigants.’” Id. (citing Landis
v. North Am. Co., 299 U.S. 248, 254
(1936)).By demonstrating and applying this
inherent power to manage the inequities of
e- discovery at the outset of a matter and in
an objective manner, the model order provides
a clear roadmap to litigants in terms
of what they can and needs to accomplish
in an action involving significant
e- discovery. The order addresses the laudable
goal of “requiring litigants to focus on
the proper purpose of discovery—the gathering
of material information—rather than
permitting unlimited fishing expeditions.”
Id. As others have stated, the federal rules
have limited the number of and time permitted
for depositions, and few challenge
the wisdom of those decisions. Perhaps it is
now worthwhile to discuss adopting similar
limitations for ESI discovery because
the volume of material subject to preservation
and disclosure will continue to grow at
a significant rate.
Prelitigation Preservation Guidance
Unfortunately, because local e- discovery
rules and orders vary among jurisdictions,
these rules do not offer meaningful boundaries
to parties on their prelitigation preservation
obligations. Parties will benefit from
these rules only after they appear before a
particular judge or court that will apply
them. Because we cannot generally predict
where a litigant will file a lawsuit, clients
must align their preservation responsibilities
with those applicable jurisdictions permitting
broad e- discovery. Rules enacted
at the state and federal level reasonably
quantifying the scope of e- discovery could
provide significant assistance in fulfilling
preservation obligations in a cost- effective
manner.
Conclusion
Parties involved in complex and class
action litigation need greater transparency
on their e- discovery obligations
beyond the guidance that state and federal
rules currently provide. Courts have
the authority, through federal and state
rules and their inherent power, to manage
their dockets and limit e- discovery in
creative ways. Local rules provide a means
to exercise this authority to clarify the
scope of e- discovery so that litigating parties
have a good foundation for cooperating.
Courts adopting local rules clarifying
e- discovery obligations are pioneers in an
arena where litigation costs in complex
and class action litigation can end up out
of control and out of line with the issues at
stake. Widely accepted testing of local rules
set the groundwork for considering similar
amendments to state and federal rules of
civil procedure.