2012 in Review: New Frameworks for Managing E-Discovery
E-discovery is constantly evolving: this year alone, there have been several game-changing developments, most notably the judicial approval of technology-assisted review, first in Judge Peck’s seminal Da Silva Moore v. Publicis Group and then in other opinions that followed. However, the Federal Rules of Civil Procedure have always been a step behind practice—after all, they did not include any reference to electronically stored information (ESI) until 2006. Although revisions to streamline e-discovery have been proposed, it is unclear when – and if – they might take effect or what further changes may be undertaken.
Model Rules & Court Orders
To fill in the gaps between the rules and practice, courts have begun taking matters into their own hands, developing their own best practices and memorializing them in model orders and guidelines. Some of the most significant changes of the year have come from the Northern District of California, a jurisdiction that has witnessed high-dollar litigation involving extensive e-discovery, and the Eastern District of Texas, one of the nation’s most popular venues for patent claims. Though limited to the litigants appearing before these courts, these orders and guidelines offer best practices that, if followed, will yield better results in any judicial forum.
Northern District of California. In November 2012, the Northern District of California released its “Guidelines for the Discovery of Electronically Stored Information” with a complementary checklist and model stipulated order. The Guidelines focus on cooperation and proportionality, aiming “to encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent.” Perhaps most instructive for parties is the court’s Checklist for Rule 26(f) Meet and Confer Regarding Electronically Stored Information. The checklist includes the following categories: (1) the scope of preservation, including dates, custodians, and data sources; (2) the identity of each party’s e-discovery liaison; (3) the range of systems and media where ESI is stored; (4) proportionality and arrangements for saving or sharing costs; (5) search methods, including keywords and phrases, and quality control measures; (6) the phasing of e-discovery; (7) the production format for structured and unstructured ESI as well as metadata; and (8) the treatment of privilege, including inadvertent disclosure and Federal Rule of Evidence 502(d) orders. This helpful checklist can be used by litigants even outside the Northern District of California which should help prevent disputes from arising during the course of discovery and to prepare for and conduct conferences in a meaningful way.
Eastern District of Texas. Similarly hoping to streamline the production of ESI, and following the lead of the Federal Circuit, the Eastern District of Texas published an Order Regarding E-Discovery in Patent Cases in February 2012. The Model Order sets forth specific parameters surrounding the production of ESI, requiring TIFF files with no obligation to produce text-searchable files unless they already exist or metadata aside from date, time, and recipient information. To require a party to delve into its backup data, voicemails, or mobile devices (including phones), a party must show good cause. Most importantly, the Model Order narrows discovery by limiting the permissible number of e-mail custodians to eight and search terms to ten. The development of this and other similar orders are already spurring further changes: in October 2012, the International Trade Commission proposed new rules to limit e-discovery. Public comments were due on the proposed rules by December 4, 2012. These stringent limitations on discovery may not work in every matter, but they certainly provide useful fodder for discussion at the conference table.
State of Florida. New ESI rules implemented in Florida are intended to address concerns that have come up in other jurisdictions, including the federal court system, about the application of procedural rules to ESI discovery. E-mails, spreadsheets and other forms of ESI are typically produced in either their native format or by converting the files into an image or Tiff. A Tiff may or may not be done in a manner that renders the file searchable; however, while producing natively can be more cost-effective since no conversion to Tiff is necessary, they can be difficult to work with when it comes to privilege status and redactions. (However, advanced native redaction tools address these challenges and bring greater efficiency to the process) . Florida’s new rules specify that ESI must be produced in native format or in a form considered “reasonably usable,” and suggest that parties discuss early on the forms in which ESI should be produced.
These model rules and orders, focusing on cooperation, reasonableness and proportionality, are designed to reduce discovery costs, prevent needless fishing expeditions and reduce discovery disputes. Many lawyers are welcoming these guidelines, which help direct parties in the absence of clear guidance from the Federal Rules. We will be watching closely to see what other jurisdictions follow suit in 2013.
Christopher O’Brien, Esq. is chief operating officer at Xerox Litigation Services. He can be reached at email@example.com.