For The Defense, February 2012 - DRI Today

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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.
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