Limit E-Discovery, or the Courts Will
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Limit E-Discovery, or the Courts Will

April 2012

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The volume of electronically stored information (ESI) created and maintained today in the normal course of business has radically changed the manner in which civil discovery takes place. Fortunately, California and federal laws provide the tools needed to avoid the delay, inefficiencies, and excess costs that so frequently burden e-discovery. The problem is that litigating parties and counsel often fail to cooperate in the manner intended by the laws, and as a result some courts are stepping in.

Enacted in 2009, California's Electronic Discovery Act created an early meet-and-confer requirement under which parties must address the discovery of ESI no later than 30 days prior to the initial case management conference. Among the issues that must be discussed are costs, preservation, forms and timing of production, protection of work product and privilege, and "development of a proposed plan relating to the discovery" of ESI. (See Cal. Rules of Court 3.724(8).) These topics overlap with the requirements in federal court at the rule 26(f) conference. (See Fed. R. Civ. P. 26(f).)

The meet-and-confer requirements of C.R.C. 3.724(8) and rule 26(f) are based on the premise that parties will address issues cooperatively and in good faith. But often parties fall well short of this standard.

Recently a federal district court in New York implemented a standing order requiring counsel to "certify that they are sufficiently knowledgeable in matters relating to their clients' technological systems to discuss competently issues relating to electronic discovery." The order makes clear it is unacceptable to treat the rule 26(f) conference as perfunctory - at the risk of sanctions. The order applies to complex litigation, and it requires parties to discuss identifying potentially relevant data, the parties' computer systems and programs, and data maintenance, and to exchange keyword lists, hit reports, and responsiveness rates. (See Standing Order M10-468, In re: Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York, No. 11 Misc. 00388, ECF 1 (S.D.N.Y.).)

Last fall, federal courts in the Northern District of California moved to limit e-discovery in patent cases by implementing a more radical approach. The basis was a model order drafted by the Federal Circuit Court's E-Discovery Committee, on whose advisory council the Northern District's Chief Judge James Ware serves. It directs litigants to focus on "the gathering of material information - rather than permitting unlimited fishing expeditions."

The model order defers all discovery of emails until after "core" discovery has taken place. It limits broad requests for "all emails" by creating a presumptive limit of five custodians and five search terms per custodian, and it restricts the types of metadata that are subject to discovery. The model order also emphasizes the "clawback" of inadvertently produced privileged material so as to "minimize human pre-production review."

San Jose-based Magistrate Judge Paul S. Grewal recently applied the model order to party discovery, explaining that "only through experimentation of at least the modest sort urged by the Chief Judge" can courts and parties begin to address "a largely unchecked problem." (DCG Systems, Inc. v. Checkpoint Technologies, 2011 WL 5244356 at *2. (N.D. Cal.).)

Judge Grewal also applied portions of the model order to create a limited search protocol for a third-party subpoena in In re Google Litigation (2011 WL 6113000 (N.D. Cal.)), agreeing with the defendant that the subpoena was too broad.

In a third patent matter, between Apple and Samsung, Judge Grewal recently weighed in on the matter of e-discovery search terms. Addressing numerous discovery disputes and the "crushing burdens imposed on both the parties and the court by cases of this type," he evaluated the search terms proposed and utilized by the parties, and directed them to work our "appropriate delimiters" for the remaining disputed terms (Apple Inc. v. Samsung Elecs. Co., 2012 U.S. Dist. LEXIS 9921, *43-44 (N.D. Cal.).)

If counsel and parties do not understand and manage e-discovery effectively, courts will take control of these issues in ways that fundamentally change the way we litigate.

Steven N. Williams, a partner with Cotchett, Pitre & McCarthy, served on the Judicial Council subcommittee for revision of California discovery rules and statutes relating to electronically stored information in 2007-08.

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