E-Discovery Update: A Contrarian Retrospective On E-Discovery In 2007

Many e-discovery commentators have described 2007 as “the year that changed litigation,” thanks to amendments to the Federal Rules of Civil Procedure that (1) required counsel to discuss specific logistical details concerning the discovery of electronically stored information (“ESI”) in the first 60-90 days of the case; and (2) strongly encouraged courts to specifically include ESI management in their case management orders. As support for the importance of 2007, commentators point to the large number of highly visible court orders and opinions issued in the past year that interpret these new requirements and apply them to specific situations. They also point to a range of polls and surveys that show that in-house counsel is paying much closer attention to ESI preservation and e discovery budget issues than they have in the past.

Still, for all these well-publicized activities, how much did the average litigation practice change in 2007? A contrarian could argue that, amended Rules or not, 2007 was much more of a continuation of past litigation practices than a radical beginning in a new e-discovery-aware world order.

I. The Amended Rules Require Practices That Were Already Being Used

2007 was the first full year that enhanced communication about ESI was specifically required by the Federal Rules of Civil Procedure. However, though the amended Rules formalized and standardized certain procedures, these newly-mandatory practices are consistent with existing and recommended best practices that had already been developed and honed through years of e discovery practice. Early discussion between the parties regarding the discovery of ESI, now mandatory under the Federal Rules, was already quite common prior to December 1, 2006 in cases involving corporate litigants and was widely recommended as a litigation best practice (e.g., The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, Principle 3 (2003 edition) (“Parties should confer early in discovery regarding the preservation and production of electronic data and documents when these matters are at issue in the litigation, and seek to agree on the scope of each party’s rights and responsibilities.”)).

Similarly, preservation demand letters that list the types of ESI that a litigant believes likely to contain information relevant to the legal dispute have also been in use for nearly a decade, along with the suggestion that these notices be served as early as possible in a case—sometimes even before a complaint was filed. While not identical in timing and procedure to the mandatory meet and confer provisions in amended Rule 26, these letters nonetheless similarly raise awareness and encourage early discussion of potentially difficult discovery topics.

A contrarian might also challenge the novelty of Rule 26’s “reasonably accessible” standard for the production of ESI. While this new language has been discussed extensively by courts and commentators alike, few have been able to point out how this new test differs substantially from the existing “unduly burdensome” standard that has guided judges resolving discovery disputes for many years. Indeed, this argument, that the “not reasonably accessible” test for ESI is cumulative and unnecessary, had been raised during the open discussion leading up to the adoption of the Rules amendments. At the theoretical level, it is true that the “reasonably accessible” language changes, to some extent, the burden that requesting and producing parties have in demonstrating the actual cost of complying with a discovery request. However, in practice, it seems that both courts and practitioners have used much the same arguments in deciding production disputes under amended Rule 26 as they did prior to December 1, 2006, when the amended Rules went into effect (e.g., Parkdale America v. Travelers Casualty and Surety Co. of America, 2007 WL 4165247 (production of ESI in Lotus Notes database format disputed on grounds “not reasonably accessible,” but analyzed by the court using traditional burden and cost analysis)). Time will tell whether the “reasonably accessible” standard diverges from traditional burdensomeness analysis; 2007 jurisprudence does not yet provide a clear answer.

II. Most Legal Disputes Are Not Bound By The Amended Rules

Reviewing the 2007 litigation landscape requires a very broad perspective. Litigation and litigation-like dispute resolution spreads across federal, state, and administrative courts, as well as arbitration, mediation, and other alternative dispute mechanisms. The Federal Rules of Civil Procedure apply only to Federal courts, limiting their application to a relatively small number of cases. Have similar changes occurred throughout the litigation landscape?

Change has been limited in most state courts, which collectively handle a vastly larger litigation caseload than federal courts, and which do not follow the amended Federal Rules. State Rules of Civil Procedure are generally modeled after the Federal Rules, but they are controlled by state legislatures, which often choose to modify language on points of particular local interest. A healthy number of states, for example, do not mandate initial disclosures, as has been required in Federal cases since 1993. Other states have long-standing (and controlling) common law that interprets “burdensomeness” in a variety of different ways. As of year-end 2007, only a small number of states have enacted specific provisions governing the discovery of electronically stored information. Though this number is continually growing, it still covers only a small fraction of active litigation matters in the United States.

State courts also face other hurdles on the path to greater e-discovery awareness. Unlike the federal court system, which has been able to implement a uniform, national program for educating judges regarding electronic discovery issues, each state has different protocols for judicial education. The Council of Chief Justices, organized through the National Center for State Courts (www.ncsconline.org) provides one way in which disparate state courts can compare notes and develop common approaches, but different states have significantly different resources with which to act on initiatives from that group. In a time when many state budgets are being stressed by slowdowns in tax revenue, it may be some years before all state courts receive the necessary resources for them to effectively manage and resolve complex e-discovery disputes.

Private dispute resolution outside either the federal or state court systems is a further venue where the Federal Rules do not apply. Parties entering into an arbitration or mediation agree on discovery obligations as a matter of negotiation or contract. Sometimes, these agreements require that a particular jurisdiction’s rules of civil procedure govern the proceedings, but an equal number of matters free the presiding neutral to determine what is appropriate for the case. The arbitrator may look to the Federal Rules and reported cases for guidance, but only as suggestive, not controlling, authority.

III. Will 2008 Be The Year That Litigation Changes?

If the contrarian perspective on 2007 is that the litigation landscape is evolving but remains relatively unchanged, will there ever be a time when “things completely change?” A conservative answer is that this tipping point will be reached only when attorneys who competently and efficiently work with discovery of electronically stored information outnumber attorneys who lack experience and training regarding these issues. Increasing demands for e-discovery competence from clients and courts alike make this an inevitable outcome, not an inspirational goal. However, the precise timing of this moment will likely be several years in the future at the earliest, and only after (1) enough state legislatures enact measures that create a national network of courts with mandatory ESI management procedures; and (2) all courts succeed in building a body of expertise and reported decisions specifically interpreting these requirements. With our slow but constant progress in overall sophistication in electronic discovery management, it is certain that the legal community will reach this point, but it also possible that we will only be able to identify this magic moment after it has finally occurred.