E-Discovery Update: My E-Discovery Holiday Wish ListBy Conrad J. Jacoby, Published on December 14, 2008
Every year, even in uncertain economic times, December marks the start of the holiday gift-giving season. And, to theoretically reduce the chances of grave disappointment (but perhaps increasing them), children young and old draft wish lists of items they’d love to receive as gifts. After all, you really can have too many turtleneck sweaters.
Wish lists often focus on specific areas of interest, and after seeing highly-publicized wish lists from the financial and automobile industries in the news, I thought of a few things that I would put on my wish list for the world of e-discovery. It’s not quite the same as wishing for world peace, but any one of these items would materially ease the ongoing difficulties that litigants and courts face time and time again. To achieve all of these at once - well, that would indeed be a holiday miracle, though one that’s theoretically attainable over the next twelve to eighteen months.
1. Standards For Requesting And Producing Database And Other Structured Data
Litigators and legal teams increasingly understand the need to preserve and request discrete electronic files, such as e-mail messages, word processing documents, and spreadsheets. Not all practitioners are completely fluent with the logistics of working with this type of electronically stored information (“ESI”), but virtually no one denies that client e-mail messages may contain substantive information that is potentially relevant in legal disputes. Thanks in large part to the amended Federal Civil Rules of Procedure that took effect in December 2006, we are finally acknowledging and addressing these issues.
However, while lawyers have found it relatively easy to analogize between discrete electronic files and traditional printed documents, many corporate litigants today are centralizing their most important corporate knowledge in databases instead of loose documents. Manufacturing companies, for example, now keep databases of consumer complaints, not file drawers of report forms. Production information is routinely entered into a computerized system that simplifies analysis—but that don’t generate hardcopy data forms. Even content management systems (e.g., document management systems) used to index and search discrete user-generated files contain significant metadata that may be critical for understanding the importance of a specific document tracked by the system.
In contrast to e-mail and office files, attorneys and judges are still working towards effective ways to manage this type of ESI in a litigation context. From discovery requests that demand the production of multi-terabyte databases that contain almost no relevant information to preservation orders that simply don’t match the technology to which they are being applied, it’s obvious that we’re not yet where we need to be.
My holiday wish is for the legal community to finally develop one or more judicially accepted standards that can be used to craft consistent ways of requesting and producing this information. With baseline procedures in place, both producing and requesting parties—as well as judges—will be able to make more informed decisions about the need for discovery of this ESI and the way in which such discovery should be conducted. Standardized procedures would be a significant improvement of the ad hoc analyses that litigants currently develop, from scratch, in every litigation matter—while never knowing whether their strategy will survive judicial scrutiny.
2. Greater Proportionality In ESI Requests
It may be based on anecdotal evidence, but litigators and judges believe that many litigation matters settle because of the cost of e-discovery. Faced with significant preservation and production costs, litigants may determine that settling the case will cost as much (or less) than seeing the case through the close of discovery—and will provide closure and eliminate the business disruption that ongoing litigation typically creates. It seems unfair, it seems like a miscarriage of justice, but it’s something that happens.
Recently, a number of judges and commentators (see, e.g., the Sedona Conference Cooperation Proclamation) have suggested that courts should conduct a more rigorous analysis under the proportionality tests set out in the Federal Rules of Civil Procedure and in its equivalent state analogs:
[T]he court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that…the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Fed.R.Civ.P. 26 (b)(2)(C)(iii).
Fact discovery has become the most expensive part of civil litigation matters; some studies have suggested that as much of 70% of a litigation budget is consumed by collecting, producing, and reviewing fact materials—whether the information is stored in hardcopy or electronic format. My holiday wish is for proportionality to be given greater weight, even at the preliminary Rule 26(f) conference, in setting the scope of electronic discovery. Certainly, some cases will always require oversized discovery, but many more cases could be resolved on their merits if fact discovery were limited to a degree commensurate with the potential legal and monetary damages in the case.
3. Greater Communication Between Litigants Re: E-Discovery
Since December 2006, the Federal Rules of Civil Procedure have required opposing litigation counsel to discuss—and hopefully resolve—specific baseline questions about electronic discovery in advance of a Rule 26(f) Scheduling Conference. While some attorneys have stepped up to the challenge of competently discussing client data repositories and retention policies, others have treated these mandatory conferences as formalities rather than genuine opportunities to anticipate and resolve differences. For those lawyers, a meet and confer session exists only so one or both sides can serve demands on the other, with no actual negotiation or agreement taking place. And as the Rules can only compel litigants to meet, but not to agree, judges continue to hear cases where litigants fail to reach agreement on any aspect of fact discovery, forcing the court to decide issues that likely could have been resolved without judicial intervention.
My holiday wish is for more lawyers to take the meet and confer process seriously. Such an approach requires both parties to make good faith attempts to (1) recognize the potential scope of the dispute (not always easy in the early stages of a litigation matter); (2) research sources of potentially relevant information in a client’s custody and control; (3) calculate the out-of-pocket cost to obtain different sources of potentially relevant information and ready it for production; and (4) bring sufficient technical expertise to the conference so that e-discovery issues can be discussed in a meaningful way. Some legal teams have already moved in this direction, but the full benefits of early discussion of e-discovery issues only emerge when all litigants in a matter are well-prepared.
There’s no magic in my e-discovery wish list. Indeed, there’s nothing novel about any item on my list, either. However, because each item on my e-discovery wish list addresses a problem for which the solution requires intellectual energy and focused interest from the legal community, not fancy technology, I have a genuine belief that these goals are realistic, as well as common to many in the e-discovery community. With a bit of luck, perhaps we will be able to see some or all of these wishes come true in the coming year.