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Managing Discovery of Electronic Information: A Pocket Guide for Judges - Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins

By Michael Smith

One of the weblogs that I monitor is Electronic Discovery Law at K & L Gates.  This week I ran across a post on it about a new Federal Judicial Center publication Managing Discovery of Electronic Information: A Pocket Guide for Judges - Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins.  The "pocket guide" is a 26-page short guide for federal judges which identifies frequent issues that come up in electronic discovery, and lists and discusses tools and techniques that judges can use to handle them.   It can be downloaded from the Federal Judicial Center?s website here, free of charge.

The central theme of the paper is that attorneys and parties should address ESI in the earliest stages of litigation, and judges should encourage them to do so.  It notes that "[a]ll too often, attorneys view their obligation to ?meet and confer? under Federal Rule of Civil Procedure 26(f) as a perfunctory exercise.
When ESI is involved, judges should insist that a meaningful Rule 26(f) conference take place and that a meaningful discovery plan be submitted."  It's hard to dispute that, but the thing I have noticed in practice recently is that in the rush to get scheduling and discovery orders agreed to by a court-ordered deadline, e-discovery issues are often deliberately pushed to the back burner in order to get the agreements the court needs to enter these initial orders and get the case started without active judicial attention.  Forcing the parties to confront these issues early makes sense from the perspective of treating e-discovery issues right, but what the paper misses is that that confrontation would mean that the court would have to address these issues  as well as a lot of others that would otherwise be agreed early on in order get basic scheduling and discovery orders out, which would have an - apocalyptic is probably a good word - effect on docket management in busy courts.  And often these issues are worked out as time goes by, and the court only has to address by motion the few issues the parties cannot resolve.  It's not the tidiest way to handle it, but it may be the most efficient. 

One solution to this issue might be to segregate the e-discovery issues from the rest of the issues the parties have to resolve initially, and provide a later date and - more importantly - a separate order for the e-discovery issues.  Another would be for the court to send out a default e-discovery protocol and require the parties to take potshots at it.  I actually dislike either - the parties are likely in the best position to determine if there is even a dispute, and can always raise the issue by motion if the need arises.  Forcing them to agree to broad contours early on carries the unavoidable risk that parties will be fighting over ground they don't yet know they will even need.  In many, many cases I wouldn't be willing to agree that I was not entitled to request such and such, but I might later determine that I didn't need it anyway, so the dispute over scope becomes moot.

I'm not even going to get into the issue of proportionality or allocation, because the issue of whether something is sufficiently relevant to be worth the effort of getting it, and who ought to pay the cost is so fact-specific that it's almost impossible to say anything useful without knowing the specific facts.  "At stake is the art of judging" as a commentator said about trying to assign weights to the factors on a different type of motion (motions to transfer venue) many years ago.  But I can't help pointing out, as I always do when I speak on this subject, that in this analysis it is critical for the requesting party not to concede that ESI is not reasonably accessible because of the cost provisions that such a finding will carry.  An 8-track may not be reasonably accessible to me, but a few minutes on eBay is likely to locate one.

There is one howler at page 10 where the writers say that "the cost of copying and transporting the [ESI] is practically eliminated and the cost to the requesting party of searching the information may be reduced because it can be done electronically."  I don't think the authors have seen many fights over the mechanics of production of source code, nor have they seen how ESI in many cases can be impossible to search electronically (and sometimes by design).  Just because some ESI can be searched doesn't mean it all can.  I have seen many fights where the requesting party was pleading for paper because good old-fashioned wood pulp was easier to analyze, and it was less trouble to start over entering the documents in a database than deal with the other side's format.  The 2006 rules prohibit this kind of gamesmanship, but even when parties aren't actively trying to spike the database, it can still be hard for the other side to use.  I have fights like this between programs on the same computer all the time - I can imagine the problems translating databases.

On the issue of inadvertent disclosure, I thought it was odd that report simply stated (at n. 22) that proposed FRE 502 was published for comment in 2006 when it's actually been proposed to Congress now, and legislation enacting it introduced.

All in all, a good short paper on these issues.  Not a lot of law or detail, but there's not a  lot here.  But it gives the general contours, and that's what readers need.

Full post as published by Eastern District of Texas Federal Court Practice on January 27, 2008 (boomark / email).