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State eDiscovery Rules

Want to Make eDiscovery Proportional? Tie it to the Amount at Stake – eDiscovery Trends

Apparently, the effect of the proposed amendments to the discovery provisions of the Federal Rules of Civil Procedure approved for public comment may not be limited to just Federal courts.  They also could have a significant effect on New York’s state courts as well.

According to Brendan Pierson in the New York Law Journal (Proposal Would Tie Scope of Discovery to Amount in Controversy), the “most sweeping change would amend Rule 26(b)(1) to require that courts allow discovery that is ‘proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.’”  Since New York courts “generally follow” the current federal discovery standard in which any material that could lead to admissible evidence is generally discoverable (regardless of the amount in controversy), the presumption is that they would follow the new standard as well.

If the US system is the “broadest discovery system on the planet” (according to Alvin Lindsay, a Hogan Lovells partner and an expert in discovery issues), the proposed changes would “bring discovery in the United States more in line with the rest of the world”.

The author cites the Zubulake v. UBS Warburg case as a key turning point in the number of documents preserved and produced in litigation and that growing eDiscovery costs have led to a “backlash among practitioners”.  According to experts, the proposed rules changes are “likely to gain broad support”.  “I don’t know who you’re going to get who’s going to oppose the principle of proportionality,” said Paul Sarkozi, a partner at Tannenbaum Helpern Syracuse & Hirschtritt and vice-chair of the commercial litigation section of the New York State Bar Association.

However, one “possible source of opposition could be class action plaintiffs attorneys, who can sometimes benefit from the more extensive discovery available under current rules”.  It will be interesting to see if there is considerable opposition from plaintiffs’ attorneys.  For more in the article, click here.

So, what do you think?  Are you pleased or concerned with the proposed amendments?  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.

200,000 Visits on eDiscovery Daily! – eDiscovery Milestones

While we may be “just a bit behind” Google in popularity (900 million visits per month), we’re proud to announce that yesterday eDiscoveryDaily reached the 200,000 visit milestone!  It took us a little over 21 months to reach 100,000 visits and just over 11 months to get to 200,000 (don’t tell my boss, he’ll expect 300,000 in 5 1/2 months).  When we reach key milestones, we like to take a look back at some of the recent stories we’ve covered, so here are some recent eDiscovery items of interest.

EDRM Data Set “Controversy”: Including last Friday, we have covered the discussion related to the presence of personally-identifiable information (PII) data (including social security numbers, credit card numbers, dates of birth, home addresses and phone numbers) within the Electronic Discovery Reference Model (EDRM) Enron Data Set and the “controversy” regarding the effort to clean it up (additional posts here and here).

Minnesota Implements Changes to eDiscovery Rules: States continue to be busy with changes to eDiscovery rules. One such state is Minnesota, which has amending its rules to emphasize proportionality, collaboration, and informality in the discovery process.

Changes to Federal eDiscovery Rules Could Be Coming Within a Year: Another major set of amendments to the discovery provisions of the Federal Rules of Civil Procedure is getting closer and could be adopted within the year.  The United States Courts’ Advisory Committee on Civil Rules voted in April to send a slate of proposed amendments up the rulemaking chain, to its Standing Committee on Rules of Practice and Procedure, with a recommendation that the proposals be approved for publication and public comment later this year.

I Tell Ya, Information Governance Gets No Respect: A new report from 451 Research has indicated that “although lawyers are bullish about the prospects of information governance to reduce litigation risks, executives, and staff of small and midsize businesses, are bearish and ‘may not be placing a high priority’ on the legal and regulatory needs for litigation or government investigation.”

Is it Time to Ditch the Per Hour Model for Document Review?: Some of the recent stories involving alleged overbilling by law firms for legal work – much of it for document review – begs the question whether it’s time to ditch the per hour model for document review in place of a per document rate for review?

Fulbright’s Litigation Trends Survey Shows Increased Litigation, Mobile Device Collection: According to Fulbright’s 9th Annual Litigation Trends Survey released last month, companies in the United States and United Kingdom continue to deal with, and spend more on litigation.  From an eDiscovery standpoint, the survey showed an increase in requirements to preserve and collect data from employee mobile devices, a high reliance on self-preservation to fulfill preservation obligations and a decent percentage of organizations using technology assisted review.

We also covered Craig Ball’s Eight Tips to Quash the Cost of E-Discovery (here and here) and interviewed Adam Losey, the editor of IT-Lex.org (here and here).

Jane Gennarelli has continued her terrific series on Litigation 101 for eDiscovery Tech Professionals – 32 posts so far, here is the latest.

We’ve also had 15 posts about case law, just in the last 2 months (and 214 overall!).  Here is a link to our case law posts.

On behalf of everyone at CloudNine Discovery who has worked on the blog over the last 32+ months, thanks to all of you who read the blog every day!  In addition, thanks to the other publications that have picked up and either linked to or republished our posts!  We really appreciate the support!  Now, on to 300,000!

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.

Minnesota Implements Changes to eDiscovery Rules – eDiscovery Trends

Last week, we reported on potential amendments to the discovery provisions of the Federal Rules of Civil Procedure that could be adopted within the year.  States are busy with changes too.  One such state is Minnesota, which has amending its rules to emphasize proportionality, collaboration, and informality in the discovery process.

As reported by Brendan Kenny in Law Technology News (Minnesota Amends Civil E-Discovery Rules), on February 4, Minnesota’s Supreme Court adopted amendments to the Rules of Civil Procedure, scheduled to take effect on July 1 of this year. Notable were amendments to Rules 1 and 26, as follows:

  • Rule 1: To address proportionality concerns, the following was added to the existing rule: “It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues” by considering the “needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.”
  • Rules 26: Rule 26.02(b) was amended, requiring that the scope of discovery “comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighed against its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”  Also, Rule 26.06 was amended to require the parties to “confer [on discovery] as soon as practicable — and in any event within 30 days from the initial due date for an answer”.

As discussed in the article, here are some other notable changes:

Rule 37.03 will authorize courts to sanction any party who does not disclose information or witnesses by

  1. Precluding the party from using that information or witness.
  2. Ordering the party to pay the other party’s “reasonable expenses.”
  3. Informing the jury of the party’s failure, or (4) imposing “other appropriate sanctions.”

Rule 37.06 allows the court to require a “party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure” to “participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26.06”.

Also, Rule 115.04 will allow courts to resolve motions to compel through an informal telephonic conference with the court, an option not previously in either Minnesota or federal court.

A link to the full set of amendments can be found here.

So, what do you think?  Has your state recently adopted any rules changes to address discovery?  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.

Adam Losey of IT-Lex.org – eDiscovery Trends, Part 2

During our recently concluded thought leader interview series, I had intended to line up at least one more interview – with Adam Losey, president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.  Under the idea of “better late than never”, I was finally able to speak to Adam and get his thoughts on various eDiscovery topics.  Enjoy!  🙂

Like his dad, Ralph Losey, Adam has a lot to say.  Yesterday was part 1 of the interview.  Here is part 2.

What are you working on that you’d like our readers to know about?

At IT-Lex, we have a cash prize writing competition.  The deadline is May 1.  The winners not only receive $5000, $1000 and $500 cash prizes, but they also will be published in an academic journal that we will begin to publish from the top three articles and other submissions.  The winners also become members of IT-Lex, if they are willing to do the accompanying work.  We have Friends, Partners and Members.  Anybody can be a Friend of IT-Lex for free by registering, which gives you discounts on our conference, on partner products (if they wish to offer them).  You also get the bi-weekly email blast, you can download the journal, and you can watch our videos.  It’s all free.  Our Partners support us financially and they get advertising rights for that.

But, Members are really the core of the organization.  You can’t buy membership, there’s no cost associated with it – you just have to agree to work, have the necessary credentials, and help drive our not-for-profit mission.  There are no honorary memberships.  It includes people like Craig Ball and Jay Grenig at Marquette Law, Maura Grossman, Bill Hamilton, Ron Hedges, Browning Marean, etc.  It’s a bunch of folks that are pretty well established and everybody has agreed to take on a job.  It’s similar to a law review setup – we have managing articles, research and symposium departments.  And, they handle a typical law review process in screening articles that we get for the competition.  But, the big “carrot” that I’m hoping for the winners isn’t the money, it’s receiving an invitation to become a member.  So, they get to join a group of well known, well learned technology lawyers and collaborate academically with them and that should help those winners “kick start” their careers.  You can call us the technology law Kickstarter.  Winners also get to present at our first annual conference, called Innovate, on October 17 and 18 in Orlando.  We’re capping attendance at 200.  There will be quite a group of judges and eDiscovery experts there.  There will be some topics that you don’t typically see at most eDiscovery conferences and the winners of the writing competition will get to present their paper at a panel session.

Thanks, Adam, for participating in the interview!

And to the readers, 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.

 

Adam Losey of IT-Lex.org – eDiscovery Trends, Part 1

During our recently concluded thought leader interview series, I had intended to line up at least one more interview – with Adam Losey, president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.  Under the idea of “better late than never”, I was finally able to speak to Adam and get his thoughts on various eDiscovery topics.  Enjoy!  🙂

Like his dad, Ralph Losey, Adam has a lot to say.  So, today is part 1 of the interview.  Part 2 will appear tomorrow.

What were your general observations about LTNY this year and how it fits into emerging trends?

Well, I’d never been to a LegalTech before, so I saw it with “virgin eyes”, I guess you could say.  It was very busy and a bit overwhelming, because there is almost no way you can do everything you want to do there.  My overall impression is that it was very well done.  Everybody at ALM in setting it up, all of the booths set up by the vendors – it was just very, very well done and, frankly, reinforces the idea of how much money is in this industry.  That there would be an event of that size and so much of the effort and money put into it was a very palpable representation of the prevalence of the eDiscovery and legal technology industry that I hadn’t seen before.  That’s my general overview.

Specifically, I was a little surprised that a lot more of the vendors don’t turn over the controls to attendees more.  I wrote an article in Law Technology News (10 Tips for LegalTech Vendors, which was discussed in this blog here) and, in it, I discuss how I think that most vendors could use the time more productively by getting you to use the tool that they have instead of talking about it generally.  My real goal for the show was to play with a lot of these tools and my expectation was that everyone would have tools available to “click around” in.  But, I was wrong.  While some vendors did, most did not.  I would like to see more vendors in the future with terminals with something like the Enron data set that is widely used and have the tool set up where you can just “have at it” and play with it.

Of course, I’m a computer dude, I’ve built computers for fun and I did some basic programming, so you can put me in front of something and I can figure it out fairly quickly.  I can understand that it can be dangerous with a lot of folks to “plop” them in front of an interface and expect them to figure it out with no training.  Then again, that should be the goal of anybody’s product, to be so intuitive that even somebody that’s not familiar with it can “plop” in front of it and get going with minimal guidance.  Honestly, I don’t understand how you can make a good decision without test driving; otherwise, if you just listen to a general spiel, everyone will give you the same spiel.  No one is going to sit you down and say “my product is terrible, don’t buy my product”.  You can hear about a great software solution or technology, the PowerPoint looks great, the sales people are wonderful and the price is right, but nobody really vets it thoroughly and you wind up being very disappointed.  The day-to-day end users need to be part of the process in figuring out what they are going to use.

If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?

From reading the news and talking with colleagues, I have a “macro” thought and some “micro” thoughts, which are mostly anecdotal from my personal experience.  My “macro” thought is a continuation of the same, more acceptance rather than introduction of the use of predictive coding (or technology assisted review, computer assisted review, whatever you want to call it).

In addition, I think that there is going to be a lot more emphasis on information security.  Anecdotally, you see a lot of data breaches and people are starting to take it pretty seriously.  I would include information security and privacy in the realm of eDiscovery even though many wouldn’t.  But, you run the risk of stepping on a really big landmine if you don’t have somebody looking out for you on that end, doing everything from making sure you comply with the CAN-SPAM act to making sure you’re meeting the data security requirements in the Gramm-Leach-Bliley Act.  Folks are starting to realize that there are significant financial consequences for not doing it right, such as getting sued.  Here’s a good example.  You’re recording this interview and I gave you consent to do so, but if you were recording it without consent in California, I would have a cause of action against you (according to the California Invasion of Privacy Act) where I could recover a significant amount of money without showing any damages, just because they have a specific statute that allows you to do that.  This is significant, in that if you recorded my call, even if it was illegal, it wouldn’t necessarily make sense for me to sue you over that, if you didn’t do something harmful, like put it on the Internet. Privacy legislation is out there where you don’t need to show any damages to receive compensation.  That makes people pay more attention to it, and motivates the Plaintiffs’ bar to sue.

Anecdotally, I’m seeing the members of the judiciary that aren’t the “eDiscovery rock stars” that we all know becoming a lot more eDiscovery savvy through education and dealing with the issues regularly.  Before, judges weren’t necessarily familiar with eDiscovery issues because those issues hadn’t been argued before them.  Now, I’m seeing more familiarity with it.  I’m also seeing more clients drawing a line on undue burdensomeness, and I am very willing to say to a Judge on behalf of a client  “no, we’re not going to spend $1 million on discovery just because opposing counsel asked for everything under the moon, it’s too burdensome and we’re going to quantify why it is overly burdensome, and ask that if they want the moon they have to pay for it”.  And, the judiciary has, in accordance with the rules, been receptive to those kinds of undue burden arguments.  And, I expect to see more litigation on that, with people “drawing lines in the sand” as to how much they will spend on discovery.

I’m also seeing more state rules changed to accommodate eDiscovery, especially rules that allow “clawback” orders.  Illinois just passed a rule allowing “clawback” orders, similar to the Federal “clawback” provision.  That’s kind of odd, because there is a conflict of law issue there, where the Federal “clawback” rule allows the Federal court to make an order effective against other Federal courts and state courts (the clawback rule in the Federal Rules of evidence was actually implemented by Congress).  The state court equivalent in Illinois allows the state court to make a “clawback” order effective against other courts.  But, a state court can’t do that against a Federal court, but the rule “allows” them to do so.  As a matter of law, I don’t think a state court can place a protective order that would be binding against a Federal court, it runs afoul of a couple hundred years of case law.

Also, Florida adopted new rules, effective last September.  I think it should be a big goal for those drafting state rules to provide clear guidance to trial courts to help them in addressing these issues, because they’re tough issues.  Trial courts deal with a high volume of cases with very limited resources and they can’t take a couple of days to “chew on” eDiscovery textbooks, so I think state courts appreciate clear guidance in state rules and I think you’re going to see a lot more states go the way of Florida and pass eDiscovery rules.  I just had a hearing in Florida that was governed by the new rules – it would have been a lot more problematic without those rules.

More from Adam tomorrow!

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.

Chances Are that Delaware Has Been as Busy as Any State in eDiscovery – eDiscovery Trends

In December of 2011, as previously reported in eDiscoveryDaily, the U.S. District Court for the District of Delaware revised the “Default Standard for Discovery, Including Discovery of Electronically Stored Information (ESI)” to reflect changes in technology and to address concerns of attorneys regarding the discovery of ESI.  As of January 1, 2013, more changes are in effect in Delaware.

As announced in a press release on the Delaware State Courts web site, The Court of Chancery has amended its Rules regarding discovery, effective January 1, 2013.  Rules 26, 30, 34 and 45 have been updated to account for modern discovery demands and will bring the Court’s rules in line with current practice.  The amendments refer to discovery of “electronically stored information” (“ESI”) in addition to “documents” and “tangible things,” and explain how parties should respond to requests for ESI.  These changes are consistent with similar amendments to the Federal Rules of Civil Procedure.  Rule 26(c) also was revised to make clear that an out-of-state non-party from whom discovery is sought may move for a protective order in this state.  Thoughtfully, they used tracked changes to make it easy to see the revisions.  🙂

In addition to amendments to the Rules, the Court also expanded itsGuidelines for Practitioners, originally released in January 2012, to include guidelines regarding discovery.  These guidelines explain the Court’s expectations regarding parties’ responsibility to confer early and often regarding discovery, including expectations and guidelines regarding:

  • Electronic Discovery Procedures,
  • Overall Scope of Discovery,
  • Preferred Procedures for Collection and Review of Discoverable Material (including ESI),
  • Privilege Assertion Process, and
  • The Role of Delaware Counsel in the Discovery Process.

The Court also developed guidelines for expedited discovery in advance of a preliminary injunction hearing.

So, what do you think?  Where does your state stand with regard to rules changes to support discovery of ESI?  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 eDiscovery Guidelines for Northern District of California – eDiscovery Trends

The U.S. District Court for the Northern District of California has announced new Guidelines for counsel and litigants regarding the discovery of electronically stored information (“ESI”) effective as of last Tuesday (November 27). The Guidelines were developed by a bench-bar committee chaired by Magistrate Judge Elizabeth D. Laporte in partnership with the Court’s Rules Committee and unanimously approved by the entire Court.

As stated in the announcement: “Counsel and litigants should familiarize themselves with the Guidelines and immediately begin using the revised Standing Order for All Judges of the Northern District of California when preparing case management statements and the Checklist as appropriate when meeting and conferring.”

As noted in the announcement, in addition to the Standing Order noted above, the package of new ESI-related documents is comprised of:

In the announcement, Judge Laporte stated: “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… The Court requires counsel to be familiar with these tools and confirm in the initial case management statement that they have reviewed the Guidelines regarding preservation and decided whether to enter into a stipulated order governing e-discovery, in light of the Model Stipulated Order.”

To confirm that familiarity and understanding by counsel, paragraph 6 of the Standing Order requires that all Joint Case Management Statements include:

“A brief report certifying that the parties have reviewed the Guidelines Relating to the Discovery of Electronically Stored Information (“ESI Guidelines”), and confirming that the parties have met and conferred pursuant to Fed. R. Civ. P. 26(f) regarding reasonable and proportionate steps taken to preserve evidence relevant to the issues reasonably evident in this action.”

As noted in this blog previously, other courts, such as the Southern District of New York (pilot program) and the Eastern District of Texas (for patent cases) have implemented standards for handling ESI, at least in certain situations.

So, what do you think?  Should all District courts adopt similar standards and provide similar guidelines and checklists?  If not, why not?  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.

Russell Taber: eDiscovery in Tennessee – eDiscovery Trends

We spend a lot of time discussing and referencing the Federal Rules of Civil Procedure, especially the changes adopted in 2006 to address handling of electronically stored information (ESI).  But, not all cases are Federal jurisdiction cases.  Many are state cases and each state (well, most of them anyway) have their own rules regarding eDiscovery.  One of those states is Tennessee.  Now, for those who practice law in Tennessee and need to address eDiscovery issues, there is a new book available to provide guidance in addressing those issues.

Electronic Discovery in Tennessee: Rules, Case Law and Distinctions was written by W. Russell Taber III.  Russell is an attorney with Riley Warnock & Jacobson, PLC, in Nashville, Tennessee.  His practice focuses on business litigation.  He is a member of The Sedona Conference® Working Group 1 and is a founding member of The Prometheus Project (The Nashville Chapter of Friends of EDiscovery).  Russell has a J.D. from Vanderbilt Law School and a B.A. from Georgetown University.  I recently interviewed Russell regarding the book and asked him several questions about the book and about eDiscovery in Tennessee in general.

Why did you decide to write the book and what are you hoping for readers to learn from reading it?

First of all, thank you for the eDiscovery Daily Blog.  I’ve been a subscriber for some time and have benefitted from its insights.  Thank you also for taking the time for this interview.

I wrote the book as a resource for Tennessee attorneys and legal professionals to use in confronting eDiscovery issues.  It begins with the premise: “The era of paper discovery in Tennessee is over.”  Though perhaps an unimaginative allusion to a famous political line during an election year, I believe the statement is true.   Virtually all information is created electronically.  EDiscovery simply cannot be ignored in Tennessee state or Federal cases, large or small.  Even so, eDiscovery can be very challenging, and the stakes can be high.  Since the most widely discussed cases in the field and at CLE’s often stem from large metropolitan centers in other states, it has been an open question whether that law does or should apply in Tennessee.   Before my book, there was no comprehensive resource that sought to address this issue, which I think is an important consideration in much Tennessee litigation.

As I understand it, the Tennessee Rules of Civil Procedure were amended to address discovery of ESI in 2009?  How do the Tennessee rules compare and contrast to the Federal Rules adopted in 2006?

That’s right.   The 2009 amendments to the Tennessee Rules were patterned largely after the “new” 2006 amendments to the Federal Rules but differ in some respects.   For instance, unlike the Federal Rules, the Tennessee Rules do not have a “meet and confer” requirement but do encourage parties to meet and confer if ESI is likely to be at issue.  The verdict is still out on what impact this distinction has in practice and on how parties cooperate on eDiscovery.

Another distinction is a rule that compliments the Tennessee state equivalent of Fed. R. Civ. P. 26(b)(2)(C)(iii) and perhaps places additional emphasis on proportionality in Tennessee state court.  Under the Tennessee rule, a judge first determines whether the ESI is subject to production.  If so, the judge then weighs the benefits to the requesting party against the burden and expense of the discovery for the responding party, considering thirteen non-exclusive factors.

Are there a couple of notable Tennessee cases that you can mention that were impacted by the Tennessee rules or by eDiscovery in general?

Yes.  While the degree of culpability that should be required to impose spoliation sanctions has been debated nationally, Tennessee state courts generally have not awarded spoliation sanctions absent destruction of evidence for an improper purpose.  In Bellsouth Advertising & Publishing Corp. v. Abebe, the Tennessee Court of Appeals applied this general rule in declining to impose sanctions for a party’s destruction of original documentation pursuant to its document retention practices.

Another notable case is CNX Gas Co., LLC v. Miller Petroleum, Inc.  The Tennessee Court of Appeals shifted all the costs (including attorneys’ fees) of collecting, reviewing and producing certain ESI to the requesting party.  The court reasoned that the requests for production, which sought ESI “with metadata,” posed an “undue burden and hardship” on the responding party.

Are there any plans to amend Tennessee rules for eDiscovery in the near future?  What do you expect to see in the eDiscovery landscape within the state over the next few years?

I’m not aware of any plans to amend the Tennessee rules for eDiscovery.  A practitioner in Tennessee can be subject to four different sets of eDiscovery rules depending on whether the case is pending in Tennessee state court or in one of the three Federal judicial districts (two of which have somewhat differing local default eDiscovery rules).  I think there is a need for more uniformity in the eDiscovery rules in Tennessee.

We recently started a local eDiscovery group in Nashville (called The Prometheus Project) that is affiliated with Friends of eDiscovery.  Our initial meeting last month generated quite a bit of enthusiasm and attracted over 40 attendees.  These local groups seem to be emerging throughout the country, and I’m hopeful this trend will spread to other cities in Tennessee.

For more information about the book, including the link on Amazon.com to purchase it, click here.

Thanks, Russell, for participating in the interview!

And to the readers, 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.

eDiscovery Daily is Two Years Old Today!
 

It’s hard to believe that it has been two years ago today since we launched the eDiscoveryDaily blog.  Now that we’ve hit the “terrible twos”, is the blog going to start going off on rants about various eDiscovery topics, like Will McAvoy in The Newsroom?   Maybe.  Or maybe not.  Wouldn’t that be fun!

As we noted when recently acknowledging our 500th post, we have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!  We now have nearly seven times the visitors to the site as we did when we first started.  We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  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, The Electronic Discovery Reading Room, Unfiltered Orange, Litigation Support Blog.com, Litigation Support Technology & News, Ride the Lightning, InfoGovernance Engagement Area, Learn About E-Discovery, Alltop, Law.com, Justia Blawg Search, Atkinson-Baker (depo.com), ABA Journal, Complex Discovery, Next Generation eDiscovery Law & Tech Blog 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!

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!

We talked about best practices for issuing litigation holds and how issuing the litigation hold is just the beginning.

By the way, did you know that if you deleted a photo on Facebook three years ago, it may still be online?

We discussed states (Delaware, Pennsylvania and Florida) that have implemented new rules for eDiscovery in the past few months.

We talked about how to achieve success as a non-attorney in a law firm, providing quality eDiscovery services to your internal “clients” and how to be an eDiscovery consultant, and not just an order taker, for your clients.

We warned you that stop words can stop your searches from being effective, talked about how important it is to test your searches before the meet and confer and discussed the importance of the first 7 to 10 days once litigation hits in addressing eDiscovery issues.

We told you that, sometimes, you may need to collect from custodians that aren’t there, differentiated between quality assurance and quality control and discussed the importance of making sure that file counts add up to what was collected (with an example, no less).

By the way, did you know the number of pages in a gigabyte can vary widely and the same exact content in different file formats can vary by as much as 16 to 20 times in size?

We provided a book review on Zubulake’s e-Discovery and then interviewed the author, Laura Zubulake, as well.

BTW, eDiscovery Daily has had 150 posts related to eDiscovery Case Law since the blog began.  Fifty of them have been in the last six months.

P.S. – We still haven't missed a business day yet without a post.  Yes, we are crazy.

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 Trends: Florida Supreme Court Adopts New eDiscovery Rule Amendments

As we discussed last October, the state of Florida has been working to adopt new rules regarding handling of eDiscovery.  Earlier this summer, the Supreme Court of Florida approved eDiscovery rule amendments that were proposed by the Florida Bar’s Civil Procedure Rules Standing Committee. The amendments to address Electronically Stored Information (ESI) generally follow the 2006 amendments to the Federal Rules of Civil Procedure, are entirely contained within existing Rules 1.200, 1.201, 1.280, 1.340, 1.350, 1.380 and 1.410 of the Florida Rules of Civil Procedure and went into effect this past Saturday, September 1.

Here is a summary of the rules changes related to eDiscovery and handling of ESI:

  • Rule 1.200 (Pretrial Procedure): Amended to allow the trial court to consider various issues (such as the possibility of obtaining admissions of fact, the voluntary exchange of documents and ESI, and stipulations regarding the authenticity of documents and ESI) related to eDiscovery during a pretrial conference.
  • Rule 1.201 (Complex Litigation): Amended to require the parties in a complex civil case to explore the possibility of reaching an agreement regarding preservation and the form of production of ESI prior to the start of discovery.
  • Rule 1.280 (General Provisions Governing Discovery): Amended to now expressly allow for the discovery of ESI.  The amendments also add a new subsection (d) which limits eDiscovery for ESI that is not reasonably accessible or overly burdensome or expensive and allows for the court to order the requesting party to bear some or all of the expenses of complying with the discovery request.
  • Rule 1.340 (Interrogatories to Parties): Amended to expressly allow for the production of electronically stored information as both an answer to an Interrogatory or Response to a Request to Produce (in the form in which it is ordinarily maintained or in a reasonably usable form).
  • Rule 1.350 (Production of Documents and Things and Entry Upon Land for Inspection of Other Purposes): Like Rule 1.340, it has been amended to expressly allow for the production of electronically stored information as both an answer to an Interrogatory or Response to a Request to Produce (in the form in which it is ordinarily maintained or in a reasonably usable form).
  • Rule 1.380 (Failure to Make Discovery; Sanctions): Amended to require that, absent exceptional circumstances, the court is not permitted to impose sanctions on a party for failing to provide ESI if it was lost as a result of the routine good faith operation of the electronic information system.
  • Rule 1.410 (Subpoena): Amended to allow ESI to be requested via subpoena.  Like Rule 1.280, it limits eDiscovery for ESI that is not reasonably accessible or overly burdensome or expensive and allows for the court to order the requesting party to bear some or all of the expenses of complying with the discovery request.

So, what do you think?  Where does your state stand in adopting rules for handling eDiscovery?  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.