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Feature Stories Prepare Early and Confer Often—Advice from Federal Experts for Electronic Discovery Practice Since the mid-1990s, a growing body of case law has developed around the most common electronic discovery issues: the duty to preserve electronic evidence, cost allocation, form of production, and application of the discovery rules to electronic data. As the case law has developed, parties have been provided with increasingly clear guidance from the courts. Now, much of the uncertainty that once surrounded electronic discovery practice is gone. Parties should no longer be asking whether they have to produce electronic information in discovery, or pleading to the courts that they should not be required to produce information in electronic form. Instead, they should be focused on how to adapt their familiar discovery practices to this new world of discovery. For the most effective electronic discovery practice, parties should follow this electronic discovery mantra—prepare early and confer often. "The federal court system is made up of more than 1,200 district and magistrate judges who must exercise their own judgment in a quarter million civil cases in the system at any given time," notes Ken Withers, Attorney and Research Associate at the Federal Judicial Center in Washington, D.C. With the increasing focus on electronic discovery in the past few years, these judges demand that parties come to court prepared." Recent research at the Federal Judicial Center shows that three out of five magistrate judges have encountered electronic discovery disputes in the past three years," says Withers, "but the courts do not want to be actively involved in discovery unless it is necessary." When disputes do arise, federal judges look to some of the most notable e-discovery decisions for guidance. "Cases such as McPeek, Rowe, Residential Funding, and In re Bristol Myers Securities Litigation now make up a body of law specifically related to electronic discovery," adds Withers. "Several years ago, electronic discovery was treated just like paper discovery. Now, the courts acknowledge that the logistics, scope, and cost of electronic discovery will necessarily be different than paper discovery." These issues are made more complex by the volume of electronic information stored by litigants as compared to the volume of paper information historically involved in most cases, and by parties' data retention and backup practices. One of the first federal judges to tackle the issue of discovery of backup tapes, Magistrate Judge John M. Facciola of the U.S.D.C., District of Columbia, authored the now famous McPeek v. Ashcroft1 decision. In McPeek, the defendants argued that the cost of restoring and searching email messages from backup tapes outweighed the likelihood that any relevant information would be found. In setting forth a "marginal utility" analysis for determining which party should pay the costs of searching archived data for relevant evidence, Judge Facciola noted that times had changed since early electronic discovery decisions were authored in the mid-1990s. Rather than categorizing electronic discovery expenses as a "cost of doing business in the computer age," as some early rulings had done, Judge Facciola's decision acknowledged that there really is no alternative to computerized document creation and storage in today's business world. "Electronic discovery is not going away," affirms Judge Facciola, "but I am constantly surprised by how little effort there is by members of the bar to revise how they approach discovery in an all-electronic world." Although he hasn't had any electronic discovery disputes in his court since McPeek, Judge Facciola recognizes that nearly all cases now involve some component of electronic data discovery. "As server capacity grows there will be more and more electronic data stored every day, but lawyers should not be intimidated and overwhelmed by electronic discovery," notes Judge Facciola. "We lawyers have conquered technology before." Judge Facciola offers some advice for practitioners faced with conquering a new kind of discovery in the computer age. "The first deposition you take in any case should be the system administrator of your opponent," he advises. "You should consult your electronic discovery expert in advance, and know what you need to ask at the deposition." He warns lawyers against heading into electronic discovery unprepared, particularly when representing the producing party. "Haphazard handling of electronic records can be very dangerous. It may look like you are hiding something if you are not organized and prepared." Withers agrees with Judge Facciola's words of caution, and echoes the sentiment. "The federal courts do not want any electronic discovery surprises. Counsel should meet and confer early and often." Mandatory disclosure rules are designed to encourage open communications about potentially discoverable materials, including all forms of electronic data. "Email is just the tip of the iceberg," says Withers. "There are many other places electronic documents can come from." Lawyers practicing in federal courts have had to adjust their discovery strategies to accommodate these changes. Electronic discovery preparedness begins even before a case is filed, according to Alan Blakley, Chair of the Federal Litigation Section of the Federal Bar Association. "Lawyers must talk with their clients about electronic discovery issues before they face litigation," advises Blakley. "It is important to include the clients' IT staff in these discussions so they know their legal duties and they know their role if a document request is received." While internal IT resources must be advised of their role in electronic discovery, Blakley notes that seeking expert e-discovery assistance even before a case is filed is frequently a good idea. "A company's own IT department is not always in the best position to make decisions about how to handle data that may be discoverable in litigation. Outside assistance is sometimes required to assess the situation." Federal judges agree with this approach. "Any lawyer who goes before a federal judge without understanding their client's technological capabilities and infrastructure is asking for trouble," states Withers. "The WalMart and Dell2 cases are illustrative of this fact." Electronic discovery technology plays an important role in the changing practice of discovery in federal courts. "Once lawyers figure out what they're doing and begin cooperating on these issues, electronic discovery is going to be so much easier than paper discovery ever was," says Blakley. "Why would you want to look through 200 pages to find the one sentence you're interested in when you can search the documents and find it in a few minutes?" Withers agrees. "It is nonsense to try to put electronic documents into the paper process today," he says. "The electronic discovery industry has developed to meet these needs, and is maturing quickly." For attorneys who have been waiting to put electronic discovery to work in their cases, the time to do so is now. Federal court practice demands that lawyers understand and embrace this emerging area of law. While the courts are demanding these changes, the long-term beneficiaries will be the forward-thinking law firms and corporations who will benefit from a more efficient and effective legal system.  1McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001). 2GTFM, Inc. v. Wal-Mart Stores, 2000 Westlaw 1693615 (S.D.N.Y.) (sanctions imposed for costs unnecessarily imposed on plaintiff by defendant's failure to disclose computer capabilities); Tulip Computers International v. Dell Computer Corp., 2002 U.S. Dist. LEXIS 7792 (D. Del.) (court ordered email discovery after party's failures to cooperate with computer-based discovery). |
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