eDiscovery Daily Blog

Uninformed Attorneys Are Not in Kansas Anymore – eDiscovery Trends

Well, at least, they have additional resources to become better informed…

“Since March 2012, the U.S. District Court for the District of Kansas has been involved in an intense effort to find ways to ensure that civil litigation actually is handled in the “just, speedy, and inexpensive” manner contemplated by Rule 1 of the Federal Rules of Civil Procedure.”  That quote is from a Rule 1 Task Force Update, issued by the U.S. District Court in Kansas regarding efforts to create newly released guidelines for electronic data discovery.

This Rule 1 project was “spearheaded” by the court’s Bench-Bar Committee of three lawyers and two federal judges, working “in close consultation with two nationally recognized experts on the federal rules and a diverse assemblage of experienced and respected trial lawyers from throughout Kansas”.  There were six working groups formed to make recommendations in the following areas (nearly all of the recommendations were approved by the Bench-Bar Committee and in turn by the court):

  1. Overall civil case management;
  2. Discovery involving electronically stored information (ESI);
  3. Traditional non-ESI discovery;
  4. Dispositive-motion practice;
  5. Trial scheduling and procedures; and
  6. Professionalism and sanctions.

The guidelines promote limiting the scope of eDiscovery and resolving of discovery disputes without judicial intervention, stating “The failure of counsel or the parties in litigation to cooperate in facilitating and reasonably limiting discovery requests and responses increases litigation costs and contributes to the risk of sanctions.”  The guidelines also recommend native productions (over spending time or money to convert documents to PDF or TIFF format), production of documents with non-privileged metadata intact and appointment of an eDiscovery liaison who is both familiar with the party’s ESI systems and capabilities and eDiscovery knowledgeable to facilitate the process and participate in dispute resolution.

The Rule 1 Task Force documents include:

  • Initial Order Regarding Planning and Scheduling: Two page model order with fill-in-the-blank sections for customized info;
  • Rule 26(f) Report of Parties’ Planning Conference: Ten page model filing of a sample Rule 26(f) report;
  • Scheduling Order: Twelve page model scheduling order;
  • Pretrial Order: A one page Pretrial Order form, followed by a seven page pretrial order (8 pages total);
  • Guidelines for Cases Involving Electronically Stored Information (ESI): A ten page set of guidelines, followed by a two page appendix, containing a reprint of a 2008 article by Craig Ball (Ask and Answer the Right Questions in EDD) with 50(!) questions to ask your opponent;
  • Guidelines for Agreed Protective Orders (with pre-approved form order): Four pages of guidelines, followed by a one page instruction on use of the model form protective order and the thirteen page model order;
  • Summary Judgment Guidelines: Two page list of summary judgment guidelines;
  • Proposed Technical Amendments to Local Rules: Seven pages of local rules with amendments (including strikeouts of words and sentences) as appropriate.

Oddly enough, the task force documents are in imaged, but text-enabled (with OCR) PDF form.  It would be great if they could provide a fully electronic PDF form for the documents, even better if they could provide form enabled versions of the model orders.  Just sayin’.

So, what do you think?  How do the Kansas guidelines compare to those for your state?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.