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Feature Stories Electronic Discovery: The Year in Review 2003 For electronic discovery, 2003 was the year that brought it all: continued news of corporate scandals and "gotcha" emails, rules and regulations changes rolling out faster than any sensible lawyer could absorb, bold technological developments never even dreamt of in years past, and groundbreaking court decisions issued in rapid-fire succession. But through it all, there were moments of clarity, and all factors point back to the one obvious conclusion that can be drawn from the year's events: electronic discovery is here to stay. Courts Calling the Shots Significant electronic discovery opinions were issued in a number of jurisdictions in 2003, but no court received more attention than the Southern District of New York. With three critical electronic discovery rulings in the matter of Zubulake v. UBS Warburg LLC, Judge Shira Scheindlin quickly became known as the preeminent electronic discovery expert on the bench. Tackling issues like the reach of Rule 26 in electronic discovery disputes, factors for considering costshifting requests, and guidelines for analyzing spoliation in the world of backup tapes, Judge Scheindlin set precedent on the prickly subjects many litigants grappled with on a daily basis. The Eleventh Circuit Court of Appeals joined the electronic discovery game in September, with In re Ford Motor Company, an opinion that discussed the reach of Rule 34 to allow an opposing party direct access to a company's computer systems. Gary Hayden, Counsel at Ford Motor Company, has been active in tracking electronic discovery trends for a number of years. "For those of us who have toiled in the e-discovery arena for some time, 2003 was the long-anticipated year of significant developments," said Hayden. Electronic Discovery: Law and Practice, the first official treatise on the topic, was published in November 2003, signaling the growth and acceptance of the body of law. Adam Cohen and David Lender, co-authors of the book and partners at the New York City office of Weil, Gotshal & Manges LLP, found that keeping up with the pace of published decisions was one of the most challenging aspects of writing the book. "To be effective litigators and corporate counselors in the age of electronic discovery, attorneys need to be familiar with the rapidly developing case law and rules changes in various jurisdictions," said Cohen. "But the good news is that comprehensive resources now exist to aid in that research." Other publications analyzed electronic discovery precedent in the context of broader discovery issues in 2003, including Moore's Federal Practice, which added a chapter entitled "Discovery of Computer- Based Information". Are the Rules of the Game Changing? Legal experts have not yet predicted that the Federal Rules of Civil Procedure will be changed to directly address electronic discovery issues, but the Discovery Subcommittee of the Advisory Committee on the Rules of Civil Procedure undertook substantial work in 2003 to evaluate the need for such changes. To define emerging trends in the nascent field, a conference of thought leaders is scheduled for February 2004 in New York. The list of jurisdictions modifying local rules to guide electronic discovery practices grew in 2003. Federal courts in New Jersey, Arkansas, Florida, and Wyoming now have local rules specific to electronic discovery practice. State courts in California, Illinois, Texas, and Mississippi also have modified rules to address technology and electronic discovery in their jurisdictions. In August 2003, the chair of the ABA's Section of Litigation, Patricia Lee Refo, underscored the growing importance of this area of law when she established the Task Force on Electronic Discovery. "As I look forward to the coming year, I'm hopeful that the Section will be able to make a meaningful contribution through the Task Force," said Refo. "Work is underway now, and the intended result is a set of guidelines and best practices standards for electronic discovery that can be of assistance for practitioners and courts, as the Advisory Committee continues to consider whether rule changes are required." Gregory Joseph, a New York City lawyer and co-chair of the Task force agrees: "The goal is to establish neutral standards, then leave to the courts the job of resolving particular disputes." The "Electronic Document Retention and Production" working group of the Sedona Conference also spent substantial time tackling the practical implications of applying "old" rules to a new kind of discovery. Hayden, a member of the advisory board of the working group, noted, "The Sedona Conference published its inaugural version of The Sedona Principles in 2003. The Principles were cited in several of the year's key electronic discovery opinions, and have been referenced by the Discovery Subcommittee in its work." Other groups, including the Defense Research Institute, the Association of Corporate Counsel, and various other specialty and local bar organizations devoted significant time and resources to educating members about electronic discovery in 2003. With many conferences and publications addressing the topic already in production for 2004, there is no sign of lagging growth in the field. Where Do We Go From Here? Like it or not, electronic discovery has changed the way we will practice law forever. Those who viewed the phenomenal increase in the volume of electronic documents as a temporary distraction to a litigator's practice are now reconsidering that position. Those who quickly embraced the notion of a new way of conducting discovery are now reaping the rewards of this important skill set. Despite their greater volume, electronic documents—and their inherent power—offer easier and less costly ways to gather, review, and produce. Wherever you fell on the continuum of electronic discovery acceptance in 2003, you would be wise to hone your electronic discovery knowledge and skills in 2004. This special Orange Pages Year in Review issue is dedicated to summarizing some of the year's greatest lessons and giving you a head start for electronic discovery success in 2004. |
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