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American litigators in high-stakes cases can be aggressive, clever, passionate, smart and, if necessary, ruthless. And costs be damned! It's how they roll. In fact, some people who study these things say that the testosterone levels of trial attorneys-males and females alike-are higher than their friends (or enemies) who don't go to court. It's all that aggression and passion! Even during some saliva tests, trial attorneys reportedly spat with greater enthusiasm and regular Joes and Janes.
But in some corners of the judicial system there seems to be an outbreak of reason and calm infecting our rancorous courtrooms which we're so proud of.
Yes, participants in the ongoing campaign to bring some sense to massive and costly discovery of ESI have scored a victory in California. The rules committee and the judges of the U.S. Northern District unanimously adopted e-discovery guidelines with "getting along" in mind. U.S. Magistrate Judge Elizabeth D. Laporte, head of a bench-bar committee, said "these tools are designed to promote cooperative e-discovery planning as soon as practicable that is tailored and proportionate to the needs of the particular case to achieve its just, speedy and inexpensive resolution, consistent with Rule 1 of the Federal Rules of Civil Procedure."
Three specific tools were adopted by the court:
1) Guidelines for the discovery of ESI
2) An ESI checklist for use during the Rule 26(f) meet-and-confer process
3) A model-stipulated order
In a statement accompanying the announcement on the court's website, it was clear the judges want attorneys to pay close attention to their new guidelines. "Knowledge of the Guidelines and a report on whether the parties have considered entering into a stipulated e-discovery order are now mandated by the judges' uniform Standing Order and use of the Checklist is strongly encouraged."
The ESI Guidelines, a straightforward three-page document, offers succinct direction on cooperation and made it clear that it is not expecting-and does not feel the guidelines interfere with "an attorney's zealous representation of a client." Since the cooperation mandate is restricted to e-discovery, we doubt U.S. litigators will begin to see symptoms of "Low T" anytime soon.
On the subject of discovery proportionality, the Guidelines read: "To assure reasonableness and proportionality in discovery, parties should consider factors that include the burden or expense of the proposed discovery compared to its likely benefit, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in adjudicating the merits of the case. To further the application of the proportionality standard, discovery requests for production of ESI and related responses should be reasonably targeted, clear and as specific as practicable."
The Guidelines direct litigants to discuss preservation "at the outset of a case, or sooner if feasible" and to periodically revisit the subject during the case.
An agenda for the required meet-and-confer conferences should contain these items, the court said: 1) preservation; 2) systems that contain discoverable ESI; 3) search and production; 4) phasing of discovery; 5) protective orders; and 6) opportunities to reduce costs and increase efficiency. The court goes on to give guidance for each topic. For example, with regard to controlling costs and finding efficiencies, the Guidelines say: "Opportunities to reduce costs and increase efficiency and speed, such as by conferring about the methods and technology used for searching ESI to help identify the relevant information and sampling methods to validate the search for relevant information, using agreements for truncated or limited privilege logs, or by sharing expenses like those related to litigation document repositories."
The court comes out and "strongly encourages" informal discovery "at the earliest reasonable stage of the discovery process."
"Counsel, or others knowledgeable about the parties' electronic systems, including how potentially relevant data is stored and retrieved, should be involved or made available as necessary. Such a discussion will help the parties be more efficient in framing and responding to ESI discovery issues, reduce costs and assist the parties and the Court in the event of a dispute involving ESI issues."
Prepared and knowledgeable e-discovery liaisons will be expected at most meet-and-confer conferences. Such a person "will be, or have access to those who are, knowledgeable about the location, nature, accessibility, format, collection, searching and production of ESI in the matter." The court says this is the case whether the individual is outside counsel, an in-house attorney, an employee of the party or a consultant.
The Guidelines conclude with "judicial expectations of counsel," such as familiarity with the Guidelines themselves, the Federal Rules, the 2006 Amendments and the accompanying 35-point checklist for meet-and-confer conferences.
The documents are available from the court's website:
Guidelines for the Discovery of Electronically Stored Information (.pdf)
ESI checklist for use during the Rule 26(f) meet-and-confer process (.pdf)
Model Stipulated Order Re: the Discovery of Electronically Stored Information. (.doc)
Standing Order for All Judges of the Northern District of California (.pdf)
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