II. REVIEW OF EXISTING LITERATURE ON E-DISCOVERY FOR JUDGES

1.The Resources assume that the judicial reader is familiar with e-discovery in general - including the differences between e-discovery and paper discovery; the problems of volume, complexity, and cost; and the recurring issues of preservation, accessibility, form of production, and waiver of privilege or work product protection.

2.For judges who are unfamiliar with e-discovery, or who wish to become reacquainted with it, several publications provide an overview that is unbiased, peer-reviewed, practical, and well-suited for judicial readers. Any judge who is currently presiding over, or who anticipates, litigation involving e-discovery is encouraged to be familiar with the following resources, each of which was the product of collaborative study and consensus:

2.1.The Sedona Conference® Working Group on Electronic Document Retention and Production (WG1), The Sedona Principles, Second Edition: Best Practices Recommendations & Principles for Addressing Electronic Document Production, 2012 Public Comment Draft (Mar. 2012).

2.1.1.The Sedona Principles is the culmination of a process by which judges, practitioners, and academics considered e-discovery as it has developed since the publication of the First Edition and the 2006 amendments to the FRCP. Considered to be an authoritative text on e-discovery, The Sedona Principles provide a lens through which e-discovery can be managed.

2.2.The Federal Rules of Civil Procedure (“FRCP”), and in particular, the Advisory Committee’s Notes accompanying the 2006 amendments. See, Fed. R. Civ. P. advisory committee’s notes (as amended April 12, 2006, effective December 1, 2006).

2.2.1.Effective December 1, 2006, the FRCP were amended to make explicit that electronically stored information (“ESI”) was discoverable and to establish a framework for judges, attorneys, and parties to address and engage in e-discovery.

2.2.2.The Resources do not urge the adoption of the FRCP by any state. However, the Resources do suggest that the FRCP provide both the outline of a judicial management philosophy and practical suggestions for state judges as they deal with e-discovery. Indeed, the FRCP has been favorably cited by state courts.1

2.3.Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins, Managing Discovery of Electronically Stored Information 4-5 (2d. ed., Fed. Jud. Ctr. 2012).

2.3.1.This is a short, concise introduction to the FRCP and to the issues that judges may encounter as they deal with e-discovery. It is published by the Federal Judicial Center, an arm of the United States courts, which provides education materials and programs to federal judges and court staff.

2.4.Conference of Chief Justices Working Group on Electronic Discovery, Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (2006).

2.4.1.The Guidelines, which predate the 2006 amendments to the FRCP, represent a set of best practices recommended by the Conference of Chief Justices that may be available to state judges as they confront e-discovery in their court. The Guidelines have particular applicability to judges in state courts that have no rules that specifically address e-discovery.

2.5.Nat’l Conf. of Comm’rs on Unif. State Laws, The Uniform Rules Relating to Discovery of Electronically Stored Information (Oct. 10, 2007).

2.5.1.The Uniform Rules, promulgated in final form after the 2006 amendments to the FRCP by the National Conference of Commissioners for Uniform State Laws, essentially mirror the amendments. Although the Uniform Rules have not been adopted by any state, these are the product of extensive deliberation and public comment. Like the FRCP, the Uniform Rules embody a philosophy of judicial management and provide a number of practical suggestions for avoiding and resolving e-discovery disputes.

3.Local rules and pilot projects

3.1.Since the 2006 amendments to the FRCP became effective, there has been a veritable explosion of discovery rules among the states. Some of these were first adopted in decisions of state supreme courts (i.e., Texas). Other states adopted the 2006 amendments in part or in whole (i.e., Florida), and other states, began experiments intended to combine various rule changes with efficiency and cost-savings. At the same time, federal courts of appeals and district courts began to develop local rules or procedures to expand upon the 2006 amendments and foster the goals of Rule 1. What follows are examples of federal and state rules and orders, sometimes experimental, intended to increase efficiencies, control costs, and further cooperation between parties.

3.2.Seventh Circuit Electronic Discovery Pilot Program Statement of Purpose and Preparation of Principles, Seventh Circuit Electronic Discovery Pilot Program.

3.2.1.The Pilot Program is based on a set of Principles developed by a broad-based committee of the Chicago-area federal bar in 2009 and adopted by standing order by many of the trial judges in the Seventh Circuit of the United States Courts. The goal of the Principles is to incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery. The Pilot Program plans to periodically study the effectiveness of the Principles and issue reports.

3.3.[Model] Order Regarding E-Discovery in Patent Cases, E.D. Tex. Civ. R., App. P (last updated Feb. 28, 2012).

3.3.1.This Model Order was developed to “to be a helpful starting point for [United States] district courts to use in requiring the responsible, targeted use of e-discovery in patent cases.” Among other things, the Model Order places presumptive limits on “‘the number of custodians and search terms for all email production requests.’ Given the unique nature of patent infringement litigation, however, judges should exercise care in attempting to export the Model Order to other types of civil litigation.”

3.4.Judicial Improvements Committee of the Southern District of New York, Pilot Project Regarding Case Management Techniques for Complex Civil Cases 26(Oct. 2011) (Exhibit B: Joint Electronic Discovery Submission No. and [Proposed] Order).

3.4.1.This Pilot Project was developed by the Judicial Improvements Committee of the Southern District of New York. Effective November 1, 2011, the Pilot Project focuses on complex civil actions, incorporates procedures intended to “improve the quality of judicial case management,” and will be effective for an eighteen-month trial period.

3.5.Default Standard For Discovery of Electronic Documents, AdHoc Committee for Electronic Discovery of the United States District Court for the District of Delaware (last updated Dec. 8, 2012).

3.5.1.This Default Standard encourages parties in civil actions to reach agreement on various topics, including proportionality, preservation, and privilege, and sets forth “parameters and/or timing of discovery . . . until further order . . . or the parties reach agreement.” Id. at 1.a.

3.6.United States District Court for the District of Maryland, Suggested Protocol for the Discovery of Electronically Stored Information.

3.6.1.This Suggested Protocol has not been adopted by the court. Instead, it “is a working model” intended to assist counsel in dealing with ESI in civil actions. The Suggested Protocol is “intended to provide the parties with a comprehensive framework to address and resolve a wide range of ESI issues, [but] it is not intended to be an inflexible checklist.” Id. at 2.

3.7.Order Regarding ESI Discovery, Ala. Civ. App., 10th Jud. Dist. (Jefferson Cnty.).

3.7.1.This is a form of order developed by Judge Robert S. Vance, Jr. that requires parties, after a status conference, to “undertake a ‘Meet & Confer’ process, with the goal of promptly assessing what ESI needs and challenges will be” in a particular civil case. Id. at 1. Among other things, the order directs counsel to confer with their clients on certain matters prior to the “Meet & Confer.”

3.8.[Order] Adopting Pilot Rules for Certain District Court Civil Cases, Sup. Ct. of Colo., Office of the Chief Justice.

3.8.1.This project, known by the acronym, ‘CAPP,’ was developed by a ‘balanced committee’ consisting of, among others, the American College of Trial Lawyers and the University of Denver’s Institute for the Advancement of the Legal System. Adopted by the Colorado Supreme Court as a two-year experiment, the Project became effective January 1, 2012. CAPP is in effect in certain Colorado judicial districts and is “intended to study whether adopting certain rules regarding the control of the discovery process reduces the expense of civil litigation in certain business actions . . . "

3.9.A Report to the Chief Judge and Chief Administrative Judge, Electronic Discovery in the New York State Courts (N.Y. State Unified Ct. Sys. Feb. 2010).

3.9.1.This report was commissioned by the Chief Judge and Chief Administrative Judge of the New York State courts. It is based on an extensive review of the literature addressing e-discovery and interviews with judges, law clerks, and practicing attorneys. It identifies a set of specific “action items” to improve the management of e-discovery.

4.In addition to these general works, there are articles and publications that address particular issues in discovery, such as preservation, attorney-client privilege, work product protection, evidential foundations, and discovery from non-parties. Representative articles and publications are cited throughout the following Chapters and in the Addendum.

1See, e.g., In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009).