E-Discovery Update - by Fios Inc.: Keeping Current with E-Discovery Law

It's always an effort for attorneys to keep current with developments in their areas of expertise. Written materials, such as fresh legal opinions and commentary, can be voluminous and easy to set aside-sometimes forever-because of immediate client needs. Moreover, attending continuing legal education ("CLE") sessions to update practice skills can require attorneys to clear large chunks of time in an already busy day, squeezing the time available to work with clients and reducing billable revenue.

These days, working with electronically stored information ("ESI") in discovery has become yet another area that attorneys need to understand, if not master. However, even dramatic developments in e-discovery practice, such as the amended Federal Rules of Civil Procedure scheduled to take effect December 1, haven't made it any easier for attorneys to break away from their client-related work and focus on this important and evolving area of law and legal practice. As a consequence, many attorneys acknowledge (uneasily and guiltily) that they should be better versed in e-discovery law at the same time that they find it difficult to find the time to gain that knowledge.

Given the limited time attorneys have available for e-discovery education, attorneys need to carefully pick and choose the many e-discovery related educational activities available to them. This is easier said than done. Attorneys face a bombardment of advertising for treatises, programs, and newsletters, with little guidance regarding how to distinguish between these many offerings. In addition, e-discovery covers a fairly broad array of tasks and challenges, and not every program has a focus that matches an attorney's client base and legal practice. A few items, however, should be at the top of every practitioner's list of e-discovery orientation activities.

1. Research The Law Of Your Jurisdiction

One of the most essential tasks for any attorney is to understand the requirements of the jurisdiction in which he or she is practicing. These days, this applies particularly in the area of electronic discovery. Although the amendments to the Federal Rules of Civil Procedure have attracted a great deal of attention, the immediate impact of these rules is solely on Federal court practice. State court matters continue to be controlled by separate laws and rules of that jurisdiction, and even certain federal courts have enacted local rules that impose additional requirements on litigants beyond what is spelled out in the Federal Rules. U.S. District Court for the District of Delaware is only one of many jurisdictions that has implemented supplemental local Rules of Procedure regarding discovery of ESI. Though some of these local rules may be subsumed by the amended Fed.R.Civ.P., it's still critically important to review them to avoid unexpected surprises.

Checking the local rules of procedure for the jurisdiction is fairly easy these days. Several subscription-based services compile local rules and make them available in a unified research tool, at a cost. Slightly less convenient, but guaranteed to be the most up-to-date, virtually all courts make their local rules available for free on their web site. A final resource may be "Rule Guides" created by e-discovery service providers, law schools, or e-discovery special interest organizations. Like subscription services, these compilations offer a single place to research the law of many jurisdictions. However, as a practical matter, these compilations may not be updated as quickly as either court web sites or subscription services, though the time lag may be fairly brief-perhaps only a few weeks-depending on the size of the sponsoring organization and the resources dedicated to keeping their information current.

In addition to understanding to local rules governing e-discovery, attorneys should also research local reported case law on these issues. Different jurisdictions use different analyses to resolve e-discovery squabbles, and attorneys should never assume that the best-known e-discovery tests and standards apply in their jurisdiction. While the Southern District of New York has contributed more high-profile e-discovery opinions than perhaps any other jurisdiction in the country (Zubulake v. UBS Warburg and Metropolitan Opera Assoc., Inc. v. Local 100, to name only two), this body of jurisprudence is not controlling authority in any other jurisdiction. Judges can and do distinguish these leading opinions in order to resolve e-discovery disputes using the controlling legal authority in their jurisdictions.

As a corollary to researching controlling case law, it's also a very good practice to research the practices and reported opinions of the judge hearing a specific matter. Individual judges often develop their own version of a standard case management order template, which may direct the parties to address ESI-related issues in specific ways. Obviously, too, a judge's prior opinions on this topic are likely to provide significant insight into how a judge weighs competing factors in allocating burden and cost-shifting in ESI discovery situations.

2. Subscribe To A Newsletter

A number of publishing companies and organizations, including the American Bar Association, have released treatises on the subject of e-discovery law. The better-written of these books can be extremely valuable-sample forms typically included can save an attorney many hours of work-but large-scale comprehensive works of this nature are generally updated relatively infrequently and on set schedules. Many cases and procedural developments can take place in the two or more years that it may take to prepare the next edition. As a result, these treatises are best for baseline information, but not necessarily for cutting-edge analysis.

A more effective approach to staying abreast of the most recent developments in e discovery practice is subscribing to one of many competing electronic e-discovery alert services of electronic newsletters. A number of service bureaus, law firms, and paid subscription e-discovery publications offer such e-mail updates on a complimentary basis. These electronic newsletters may be free, but they offer genuine value to attorneys who don't have time (or budget) for the substantial legal research required to piece together incremental developments in e-discovery law. Many of the publishing companies who distribute a free e-newsletter also include abstracts of articles that appear in their paid materials. Such abstracts are obviously incentives for attorneys to buy a subscription so they can access the entire article, but they also alert attorneys-for free-to additional public commentary that may be helpful in arguing a particular issue in a case.

Because many of these alert subscriptions are free, attorneys can certainly subscribe to more than one. However, most significant e-discovery opinions are covered by all newsletters, so practitioners may find substantial overlap in competing newsletters' content. Newsletters are normally distinguished by the specific analytical focus they have, such as computer forensics, litigation, or industry, and by the strength of their analysts. For many practitioners, any of the e-newsletters provided by top-tier e discovery service bureaus may be an excellent starting point.

3. Attend A Well-Regarded E-Discovery CLE Program

To the extent that an attorney has time, it can be very helpful to attend one or more high-quality CLE programs that cover e-discovery issues. Theoretically, attending a CLE session takes attorneys out of their day-to-day environment, isolating them so that they can focus on the issues being discussed. As a practical matter, few people can completely escape their work when they attend a CLE program (especially if the seminar room has cell phone and wireless internet coverage), but a change in physical location still generally makes it easier to concentrate on the program.

For attorneys who can't break away from a busy practice, high-quality e discovery CLE is also available over the internet. A number of organizations offer distance learning programs (aka, "webinars") in which participants dial into a central conference call number to hear a presentation while following slides or product demonstrations pushed out over the internet. These programs are generally shorter and less detailed than longer in-person programs, but they still offer an opportunity to hear-and question-a lecturer with substantial experience in the field.

Given the proliferation of CLE programs covering e-discovery practice, one problem that attorneys face is choosing which programs to attend. However, not all sponsoring organizations have the same level of experience with e-discovery issues, and some conferences are much more useful than others. One way to validate a CLE presentation is to look at the sponsoring organization. Is this a group that has demonstrated expertise with e-discovery issues, or has it put together a program simply because it believes people will attend it? Second, even if the sponsoring organization is wholly unfamiliar with e-discovery issues, the CLE program's faculty can be a significant indicator of the program's strength. While there are many qualified but generally unrecognized attorneys and legal professionals with significant e-discovery experience, a faculty that is composed entirely of unknown speakers is a yellow flag (or worse) that the program may not contain the highest value content. This is not to say that less well-known speakers cannot provide helpful insight, but better conferences try to include at least one "name brand" speaker, who often also helps organize the program in addition to personally speaking.

Conclusion

Today's e-discovery industry would look very different if this subject matter were easily understood by attorneys and paraprofessionals. However, at this time, many legal professionals do not feel completely comfortable with the issues involved with requesting and working with ESI. Investing even a modest amount of time in high-value educational activities can greatly increase an attorney's ability to successfully work through the e-discovery aspects of their clients' matters, while alerting attorneys to specific activities and issues where they may continue to need outside assistance. Better-educated lawyers can also work to create better, clearer guidance for resolving ESI disputes-or ensuring that they never arise in the first place.