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State eDiscovery Rules

Rules Amendments Are Not Just Being Approved WITHIN DC, But Also FOR DC As Well: eDiscovery Trends

We’ve been covering the progress of adoption of changes to the Federal Rules and the associated debate regarding the rules – especially Rule 37(e) – for over two years (with posts here, here, here, here, here, here, here and here).  Unless Congress introduces legislation to affect the timing or content of the rules, the rules will become effective on December 1 of this year.  But, did you know that there are new rules amendments for the District of Columbia, as well?

According to DCBar.org, on August 5, the Superior Court of the District of Columbia issued Rule Promulgation Order 15-02 amending Superior Court Rules of Civil Procedure 16, 26, 33, 34, 36, 37, and 45.

The amendments, which take effect October 12, 2015, establish processes and procedures for electronic discovery, including the manner for requesting and producing electronically stored information, and for requesting and submitting certain discovery requests in an electronic format.  They also incorporate some stylistic changes based on guidelines established by the Style Subcommittee of the federal Standing Committee on the Rules of Practice and Procedure.

Including the one-page rule promulgation order, the amended rules (extensively edited with amendments to the rules in red and strikethrough of rule text that has been removed) is contained within this 38 page PDF file.  Happy reading!

So, what do you think?  Do you practice law in DC?  If so, are you happy about the rules changes?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Colorado Rolls Out Guidelines and Checklist for Discovery of ESI: eDiscovery Trends

From time to time, we’ve covered not only Federal eDiscovery rules, but also eDiscovery rules within the states as well. One of the states that has been slow to undertake any eDiscovery rulemaking activity is Colorado. However, on June 4, the U.S. District Court for the District of Colorado did publish new Guidelines Addressing the Discovery of Electronically Stored Information as well as a Checklist for Rule 26(f) Meet-and-Confer Regarding Electronically Stored Information (ESI).

In 2012, the US District Court for the District of Colorado convened an Electronic Discovery Committee and that Committee worked with the Corona Institute to develop, conduct, and analyze a comprehensive survey of practitioners in the District concerning their experiences with ESI. Nearly 2,000 responses were received and over 90% of respondents requested that the court assist practitioners in our District with eDiscovery by adopting some form of procedures or rules for ESI-intensive cases, with the largest group (43.8%) requesting guidelines to assist counsel. So, here they are!

Here is a brief summary of each document:

  • Guidelines Addressing the Discovery of Electronically Stored Information: The guidelines include commentaries that cover obligations of counsel, expectations for cooperation, standards of reasonableness and proportionality, proactivity with regard to ESI and treating the Rule 26(f) meet and confer as a critical step in the eDiscovery process, among other guidelines. The 14 page document also includes a preface and a list of reference materials (with links to several of them) and also references the checklist below as an attachment.
  • Checklist for Rule 26(f) Meet-and-Confer Regarding Electronically Stored Information: This comprehensive four page checklist covers a variety of topics that may need to be covered, depending on the nature and complexity of the matter, in the areas of preservation, identifying an eDiscovery liaison for each party, location and types of data and systems, proportionality and costs, search and filtering of ESI, phasing, production and privilege. These are useful guidelines for matters in any state (not just Colorado) or in Federal court as well.

The court’s guidelines are the result of two years of work and focus on cooperation between parties, clients and their attorneys. They’re guidelines, not rules, so it is still up to the court’s participants to decide to use them. While both the guidelines and checklist are dated September 2014 on the face of the document, they are noted as “appended” on the district court site and both files have the date “4-24-15” in the file name.

In October 2013, we covered Winston & Strawn’s handy interactive map of the US that enables you to click on any state and get a page with links to the actual rules for that state (or documents related to rules being considered). Back then and still today, Colorado is shown (in Orange) as a state that has not undertaken eDiscovery rulemaking activity to date. While these guidelines are not rules, they will hopefully have a positive impact in setting expectations for judges and attorneys in Colorado cases.

So, what do you think? Is this a positive step for Colorado? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

New California eDiscovery Competence Proposed Opinion Has Been Revised – eDiscovery Trends

Last April, we reported on a new proposed opinion in California that required that attorneys in that state better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required. Now, that opinion has been revised and the comment period has been reset.

The California State Bar Standing Committee on Professional Responsibility & Conduct has released a new version of the Proposed Formal Opinion Interim No. 11-0004, which is designed to establish an attorney’s ethical duties in the handling of discovery of electronically stored information. Now, the first page of the opinion states:

“An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.”

The proposed ethics opinion still includes the hypothetical situation discussed in the original version in which a lawyer agrees to opposing counsel’s search of his client’s database using agreed-upon terms with that lawyer mistakenly thinking that a clawback agreement offered by opposing counsel is broader than it is, and will allow him to pull back anything, not just protected ESI, so long as he asserts it was “inadvertently” produced. The remainder of the proposed opinion discusses the attorney’s duties regarding ESI, including the duty of competence and the duty of confidentiality.

The clock is reset and the committee is requesting comments on the revised opinion now through April 9 (by 5pm Pacific time). For more information and where to direct comments, click here.

So, what do you think? Will other states adopt similar ethics opinions? 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. eDiscoveryDaily is made available by CloudNine 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.

Our 1,000th Post! – eDiscovery Milestones

When we launched nearly four years ago on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis.  Now, after doing so each business day (except for one), I’m happy to announce that today is our 1,000th post on eDiscovery Daily!

We’ve covered the gamut in eDiscovery, from case law to industry trends to best practices.  Here are some of the categories that we’ve covered and the number of posts (to date) for each:

We’ve also covered every phase of the EDRM (177) life cycle, including:

Every post we have published is still available on the site for your reference, which has made eDiscovery Daily into quite a knowledgebase!  We’re quite proud of that.

Comparing our first three months of existence to now, we have seen traffic on our site grow an amazing 474%!  Our subscriber base has more than tripled in the last three years!  We want to take this time to thank you, our readers and subcribers, for making that happen.  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan University, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, e-Discovery Team ® and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

I also want to extend a special thanks to Jane Gennarelli, who has provided some serial topics, ranging from project management to coordinating review teams to what litigation support and discovery used to be like back in the 80’s (to which some of us “old timers” can relate).  Her contributions are always well received and appreciated by the readers – and also especially by me, since I get a day off!

We always end each post with a request: “Please share any comments you might have or if you’d like to know more about a particular topic.”  And, we mean it.  We want to cover the topics you want to hear about, so please let us know.

Tomorrow, we’ll be back with a new, original post.  In the meantime, feel free to click on any of the links above and peruse some of our 999 previous posts.  Now is your chance to catch up!  😉

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.

300,000 Visits on eDiscovery Daily! – eDiscovery Milestones

While we haven’t served over 300 billion burgers like McDonald’s, we have provided something to digest each business day for over 43 months.  We’re proud to announce that on Friday, eDiscovery Daily reached the 300,000 visit milestone!  It took us a little over 21 months to reach 100,000 visits and just over 22 months to triple that to 300,000!  On to 500,000!

When we reach key milestones, we like to take a look back at some of the recent stories we’ve covered, so, in case you missed them, here are some recent eDiscovery items of interest from the past six weeks.

After 2,354 Public Comments, One Major Change to the Proposed Federal Rules: By the February 15 deadline for the comment period, no less than 2,354 public comments had been filed regarding the proposed Federal Rules amendments.  Much of the controversy related to Rule 37(e)(1)(B), which included a hotly debated amendment that the court may impose sanctions or order an adverse jury instruction, but only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith,” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.  Since then, Rule 37(e) has been modified, not just once, but twice.

Government Attorneys Have eDiscovery Issues Too: From a confidence standpoint, 73% of respondents feel as confident or more confident in their ability to manage eDiscovery in their cases.  But, 84% of respondents feel somewhat or not at all effective in their agency’s ability to deal with the challenges of eDiscovery and 80% of respondents feel somewhat or not at all confident that if challenged their agency could demonstrate that their ESI was “accurate, accessible, complete and trustworthy.  These and other survey findings are available here.

Cloud Security Fears Diminish With Experience: According to a recent survey of 1,068 companies conducted by RightScale, Inc., concern about cloud security diminish as users gain more experience using cloud-based services.  Learn more about organizations’ cloud habits here.

Daughter’s Facebook Post Voids $80,000 Settlement: As reported a few weeks ago on CNN, the former head of a private preparatory school in Miami lost out an $80,000 discrimination settlement after his daughter boasted about it on Facebook.  That’s why it’s important to think before you hit send.  Even if you’re still in grade school.

New California Proposed Opinion Requires eDiscovery Competence: If a new proposed opinion in California is adopted, attorneys in that state had better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required.

Predictive Analytics: It’s Not Just for Review Anymore: One of the most frequently discussed trends in this year’s annual thought leader interviews that we conducted was the application of analytics (including predictive analytics) to Information Governance.  A recent report published in the Richmond Journal of Law & Technology (and discussed here) addresses how analytics can be used to optimize Information Governance.

How Do You Dispose of “Digital Debris”? EDRM Has Answers:  Those answers can be found in a new white paper discussed here.

Also, hackers took Typepad, our platform for hosting the blog, down for a bit.  But, we’re back and better than ever!

Want to get to know some of your litigation support colleagues better?  Leave it to Jane Gennarelli, who has provided profiles here, here, here, here, here and here.

We’ve also had 11 posts about case law, just in the last six weeks (and 296 overall!).  Here is a link to our case law posts.

Every post we have ever published is still available, so the blog has become quite a knowledge base over the last 43+ months.  Sometime this summer, we will publish our 1,000th post!

On behalf of everyone at CloudNine Discovery who has worked on the blog and other publications that have picked up and either linked to or republished our posts, thanks to all of you!  We really appreciate the support!  Now, on to the next topic.  🙂

And, as always, 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.

New California Proposed Opinion Requires eDiscovery Competence – eDiscovery Trends
 

If a new proposed opinion in California is adopted, attorneys in that state had better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required.

The California State Bar Standing Committee on Professional Responsibility & Conduct has released Proposed Formal Opinion Interim No. 11-0004, which is designed to establish an attorney’s ethical duties in the handling of discovery of electronically stored information.  As stated on the first page of the opinion:

“Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.”

The proposed ethics opinion includes a hypothetical situation in which a lawyer agrees to opposing counsel’s search of his client’s database using agreed-upon terms with that lawyer mistakenly thinking that a clawback agreement offered by opposing counsel is broader than it is, and will allow him to pull back anything, not just protected ESI, so long as he asserts it was “inadvertently” produced.  Ultimately, the lawyer learns the search produced privileged information and also showed that his client had deleted some potentially relevant documents as part of a regular document retention policy, breaching his duty of competence and his duty to maintain client confidences and to protect privileged information.  Oops!

The remainder of the proposed eight page opinion discusses those very attorney duties regarding ESI, including the duty of competence and the duty of confidentiality.

The committee is requesting comments on the proposed opinion through June 24.  For more information and where to direct comments, click here.

So, what do you think? Are ethics opinions like this needed to establish competency requirements for attorneys? 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.

LitigationWorld Quick Start Guide to Mastering eDiscovery – eDiscovery Best Practices

With the Super Bowl coming up in a few days, it seems appropriate to relay a story about the man for whom the trophy to the winning team is named…

During his first year with the Green Bay Packers, legendary coach Vince Lombardi pulled his team together for a stern lecture after his team lost five games in a row.  He scolded them saying “You forgot every basic fundamental about this game.  We are going to have to start all over again, from scratch!”  Then, he picked up a football and said “Gentlemen, the basics.  This is a football!”  To which one of his players responded “Hold on a minute, Coach!  You’re going too fast!”

Sometimes, it seems like we’re “going too fast” when trying to explain eDiscovery to attorneys.  At least it seems that there are a lot of attorneys that don’t understand the simplest basics.  Now, a brand new guide is hoping to help change that.  Earlier this month, TechnoLawyer published LitigationWorld Quick Start Guide to Mastering Ediscovery, written by Tom O’Connor, who is a nationally recognized consultant in legal technology (and past thought leader interviewee on this blog).

After illustrating just how big the knowledge gap can be, how a lack of eDiscovery knowledge can prove disastrous (via the opinion In re Fannie Mae Securities (D.C. Cir. Jan. 6, 2009)) and the ethical duties for lawyers to understand technology, Tom’s Quick Start Guide dives into the “This is a football!” basics of how computers work and why you should care.  It discusses the bits and bytes (literally) of how computers store data that is discoverable and how “deleted” electronically stored information (ESI) is actually often recoverable.  Remember Oliver North and the Iran-Contra affair?  His deleted email was recovered and he was convicted of perjury…way back in 1989.  These are not groundbreaking new concepts, but they are important if you’re going to be responsible for handling data in discovery.

With some basic technical concepts covered, the guide covers the evolution of eDiscovery with the December 2006 amendments to the Federal Rules of Civil Procedure (FRCP), similar amendments adopted by many of the states and, of course, the groundbreaking Zubulake v. UBS Warburg case.  To tie back to the computer fundamentals, Tom asks and answers an important question: “How can you apply current and future rules to ensure your clients preserve all potentially relevant ESI unless you know how it’s stored? You can’t so that’s why you need to understand the basic technological underpinnings of data storage.”

Tom then goes on to cover various forms of production and the advantages and disadvantages of each – his reference to TIFF images as “petrified” is the best adjective I’ve heard yet to describe them – and covers other basic (but important) concepts, such as collection, processing and load files.  He concludes by discussing the importance of learning to “speak geek” about storage technologies and sets the path for you to travel to “true eDiscovery mastery”.

The document is relatively short and sweet, at just 17 pages after the title page and is an easy read, yet contains numerous links to outside resources for those who want to dive deeper.  He references a number of resources and courses available from a variety of eDiscovery pioneers, including Ralph Losey, Craig Ball and Michael Arkfeld.  There is no shortage of resources in this guide for those who want to learn more about eDiscovery.

The free guide is available for download at TechnoLawyer here (you have to be a member of TechnoLawyer to get it, but membership is free, which also gives you access to numerous other resources available on the site).

As Tom notes via a quote from Craig Ball (from this very blog, no less), “Understanding information technology is a necessity for litigators. That’s where the evidence lives.”  As Tom notes, “We all must adapt to this new paradigm of working in the digital world.”  Let’s hope that adaptation occurs sooner rather than later.

So, what do you think?  Do you understand the basic technical concepts you need to as a lawyer?   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.

Great Resource for Status of State eDiscovery Rules – eDiscovery Trends

Ever wonder about your state and what eDiscovery rules it has?  Or if it has any at all?  The graphic of the US map you see here provides the key.

Winston & Strawn has a handy interactive map of the US (which looks just like this graphic) that enables you to click on any state (assuming that it has any information about rules) and get a page with links to the actual rules for that state (or documents related to rules being considered).  Wonder what the colors mean?  Here’s a key:

  • Green: This state essentially follows the Federal Rules of Civil Procedure (FRCP) eDiscovery model.
  • Blue: This state follows its own independent eDiscovery model.
  • Yellow: This state is in the process of undertaking and/or considering eDiscovery rules.
  • Orange: This state has not undertaken eDiscovery rulemaking activity to date.

Simply click on a state and you’ll be taken to a page with a listing of rules, orders, sample orders, etc., which, in turn, are also interactive and clickable.  For example, here is the list for Texas, my home state:

State Rules

  • TX_R. CP 196.4 Electronic or Magnetic Data

Federal Rules

  • TX_ S D LR Patent Cases Rules of Prac
  • TX_ S. D. Ct Procedures of Lee Rosenthal
  • TX_ S.D. Ct Procedures of J. Atlas
  • TX_E.D. Notice of Scheduling Conf
  • TX_N. D. District Misc Order No. 62

There are a few states that don’t seem to be clickable, but they are “orange states”, so it’s my guess that they simply have no documents available for that state.  This is a very useful and handy guide to eDiscovery rules in each of the states – well done, Winston & Strawn!

So, what do you think?  Can you believe that there are still apparently ten states with no eDiscovery rules?   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.

eDiscovery Daily is Three Years Old!

We’ve always been free, now we are three!

It’s hard to believe that it has been three years ago today since we launched the eDiscoveryDaily blog.  We’re past the “terrible twos” and heading towards pre-school.  Before you know it, we’ll be ready to take our driver’s test!

We have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 575%!  Our subscriber base has grown over 50% in the last year alone!  Back in June, we hit over 200,000 visits on the site and now we have over 236,000!

We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful posts about eDiscovery trends, best practices and case law.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan College, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, Litigation Support Technology & News, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, Learn About E-Discovery, e-Discovery Team ® and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As many of you know by now, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

Rodney Dangerfield might put it this way – “I Tell Ya, Information Governance Gets No Respect”

Is it Time to Ditch the Per Hour Model for Document Review?  Here’s some food for thought.

Is it Possible for a File to be Modified Before it is Created?  Maybe, but here are some mechanisms for avoiding that scenario (here, here, here, here, here and here).  Best of all, they’re free.

Did you know changes to the Federal eDiscovery Rules are coming?  Here’s some more information.

Count Minnesota and Kansas among the states that are also making changes to support eDiscovery.

By the way, since the Electronic Discovery Reference Model (EDRM) annual meeting back in May, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.

When it comes to electronically stored information (ESI), ensuring proper chain of custody tracking is an important part of handling that ESI through the eDiscovery process.

Do you self-collect?  Don’t Forget to Check for Image Only Files!

The Files are Already Electronic, How Hard Can They Be to Load?  A sound process makes it easier.

When you remove a virus from your collection, does it violate your discovery agreement?

Do you think that you’ve read everything there is to read on Technology Assisted Review?  If you missed anything, it’s probably here.

Consider using a “SWOT” analysis or Decision Tree for better eDiscovery planning.

If you’re an eDiscovery professional, here is what you need to know about litigation.

BTW, eDiscovery Daily has had 242 posts related to eDiscovery Case Law since the blog began!  Forty-four of them have been in the last six months.

Our battle cry for next September?  “Four more years!”  🙂

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.

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.