Electronic Discovery Navigator

The Delaware Superior Court Establishes A Complex Commercial Litigation Division To Address The Concerns Of The Business Litigant

The Delaware Superior Court Establishes A Complex Commercial Litigation Division To Address The Concerns Of The Business Litigant

"Probably the most valuable aspect of the CCLD is its E-Discovery Plan Guidelines. It is well-documented that business litigants struggle to strike an appropriate balance between conducting necessary e-discovery and covering the significant expense such discovery often entails. Parties often have to consider whether the likelihood of prevailing, and the likely amount of recovery, justify the cost and uncertainty of embarking on the e-discovery process. To address these very real concerns, the E-Discovery Plan Guidelines allow for meaningful input by counsel into the e-discovery process and call for the entry of an e-discovery order to govern how electronically stored information (ESI) will be preserved, produced and protected. The order is to be entered early in the case and should guide the parties as they proceed to conduct e-discovery. The order also will allow for reasonable restrictions on the scope of e-discovery where a party can show production of certain ESI will subject it to undue burden or expense."

Wisconsin's Proposed Electronic Discovery Rules

Proposed Rules for Electronic Discovery

"On Jan. 21, 2010, the Wisconsin Supreme Court will hold a public hearing regarding the proposed amendments, with the court’s conference in the matter to immediately follow. The amendments are adapted from the Uniform Rules on the Discovery of Electronically Stored Information and the 2006 amendments to the Federal Rules of Civil Procedure. The new rules are “intended to provide consistency and predictability in the discovery of electronically stored information.” In addition, the rules 'are intended to reduce the economic burden that can result from the discovery involving the enormous volume of electronically stored information.'"

California Governor Approved Electronic Discovery Act

On June 29, 2009, Governor Arnold Schwarzenegger signed California's Electronic Discovery Act into law.  Because the Act contains an urgency provision, it is effective as of June 29, 2009.

Here's the Electronic Discovery Act in its entirety.

Rulemaking In State Courts: A Rationale For Adopting ESI Provisions Of FRCP 26

Rulemaking In State Courts: A Rationale For Adopting ESI Provisions Of FRCP 26

"The Federal Rules of Civil Procedure were amended on December 1, 2006 to address discovery of electronically stored information (ESI). Among the amendments to the Federal Rules were significant changes to Rule 26 that provide additional protections to litigants who are dealing with a proliferation of computer usage, inexpensive data storage, and developments in communication technology that have changed discovery practice tremendously over the past several years. While several states have adopted (or are working on adopting) new rules, some of which are modeled after the Federal Rules, many states have either decided not to implement new rules or have adopted a "wait and see" approach to see how the Federal Rules work before adopting state rules. We have seen since its adoption in 2006, that three provisions in Fed. R. Civ. P. 26 greatly benefit litigants: the so-called "claw-back" provision; the two-tiered bifurcation of discovery based on active and "not reasonably accessible" information; and the inclusion of a discussion of ESI in early case planning conferences. Some states decided long ago not to compel litigants into early case management conferences and may not be likely to revisit that issue. Adopting the claw-back and two-tiered approach, however, would provide litigants with much needed protection and predictability in the discovery process."

E-Discovery: Texas Ahead of the Game

E-Discovery: Texas Ahead of the Game

"Having a good e-discovery strategy is an organization's first line of defense in a court proceeding. If an agency must deal with litigation, attorneys for all parties will likely request documents that may only exist in electronic form. In the past, if correspondence was requested, an organization would try to produce all the relevant memos and letters employees had written. Instead of instant messages, you rounded up all the sticky notes in your office. Now, many of those documents exist electronically.

On Dec. 1, 2006, amendments were made to the Federal Rules of Civil Procedure, including changes mandating that electronic documents in federal court are to be treated, legally speaking, the same as paper documents. The rules govern how federal courts deal with discovery requests in civil proceedings. It's important for state and local governments to be aware of them because state and local courts generally reflect federal court practices. That's where the amended rules come in - they're part of an effort to eliminate a lot of uncertainty surrounding e-discovery.

Texas, like some other states, proactively changed its procedures prior to the federal rule amendments. David Halpern, the assistant attorney general at the Texas Office of Attorney General (OAG), said that while the amendments raise awareness, Texas had already moved on e-discovery."

Judicial Council Endorses Electronic Discovery Legislation

Judicial Council Endorses Electronic Discovery Legislation

"The Judicial Council of California on Friday approved proposed legislation to modernize civil discovery law and improve the procedures for handling the discovery of electronically stored information in California civil cases.

At its meeting in San Francisco, the council unanimously approved proposed amendments to the Civil Discovery Act, set forth in Code of Civil Procedure Secs. 2016.010 et seq., to reflect the growing importance of discovery of electronically stored information by incorporating many of the provisions set forth in the Uniform Rules Relating to Discovery of Electronically Stored Information.

In a release announcing the action, the council said it will cosponsor the legislation with the Consumer Attorneys of California and the California Defense Counsel. It said that Assemblywoman Noreen Evans, D-Santa Rosa, has agreed to author the legislation and that AB 926, which is currently pending in the Senate Judiciary Committee, will be used for this purpose."

Calif. Judicial Council to Weigh New E-Discovery Rules

Calif. Judicial Council to Weigh New E-Discovery Rules

"The Judicial Council will consider new rules for electronic discovery in California, a long-awaited package that's been received warily by the high-tech industry.

The proposed state rules, in their latest form, largely mirror federal regulations enacted in December 2006 that spell out how and when records from fax machines, computer databases, e-mails and even cell phones can be exchanged in civil litigation. The rules define what constitutes electronic information, and they allow "inspecting, copying, testing or sampling" by parties.

The new state e-discovery rules spell out what format the information should be provided in and add new "safe harbor" provisions to protect parties who lose e-materials due to "routine, good-faith operation" of their electronic systems."

Losing the way over e-discovery?

Losing the way over e-discovery?

"At the end of 2006, the Federal Rules of Civil Procedure got amended to address the question of electronic discovery in lawsuits. Not to be outdone, the Judicial Council of California has now proposed its own set of amendments.

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While the amended federal rules steered clear of providing a precise definition of what constitutes electronically stored information, it does cover information "stored in any medium" so far as it can be "retrieved and examined." In this way, the amended text avoids any specific definition that later could be outstripped by advances in technology.

The proposed California amendments take a different tack, referencing information that is stored in an electronic medium and relating to technology having "electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities." While this comes across as quite broad, the federal definition might be better, as it later may be less capable of evasion by a new technology."

Here's the California proposed ediscovery rules.

Minnesota Follows FRCP Rules for Discovery of Electronically Stored Information

Minnesota recently amended its Rules of Civil Procedure, providing for, among other things, procedures for discovery of electronically stored information.  The amended ediscovery rules mirror those found in the Federal Rules of Civil Procedure.  The Minnesota Rules became effective on July 1, 2007.

Northern California District Court Expands Information Retention Requirements

The U.S. District Court for the Northern District of California recently issued a Standing Order (effective March 1, 2007), revising Civil Local Rule 16-9, my good friend Robert Brownstone and his colleagues wrote in their firm's Litigation Alert.  The revision addresses preservation of evidence issues, particularly important is the requirement of preserving voice mails and other "electronically-recorded material."

The requirement that routine record retention programs be suspended when litigation is reasonably anticipated or pending (commonly referred to as a "litigation hold") has been in place for some time. The express expansion of this requirement to include voice mails and other  "electronically-recorded material," however, represents an important development -- particularly for corporate litigants that may encounter substantial technological and monetary challenges and limitations in stopping the erasure of voice mails. Indeed, for companies operating on older and/or proprietary voice mail systems, targeted stoppage of voice mail erasure may be impossible as a practical matter.  Coupled with the December 1, 2006 expansion of Federal Rule of Civil Procedure 34(a) to cover "sound recordings ... and other data or data compilations stored in any medium from which information can be obtained," the Northern District's new rules may present significant electronic information management challenges to companies.

(Source: Brownstone, Bob; Fenwick, Bill; Sands, Mike, "Northern California District Court Expands Information Retention Requirements.")