III. GENERAL RECOMMENDATIONS FOR JUDGES

1.A review of the sources cited above reveals a common thread: The key to reducing the cost and delay associated with e-discovery is judicial attention to discovery issues starting early in, and continuing throughout, any given stage of an action. The expenditure of a small measure of judicial resources at the beginning of litigation to set the tone and direction for discovery – and the judge’s availability to the parties at each stage of discovery – will most likely save the expenditure of significantly more judicial resources later.



2.The Resources make the following recommendations:

2.1.Judges should adopt a hands-on approach to case management early in each action.


2.2.Judges should establish deadlines and keep parties to those deadlines(or make reasonable adjustments) with periodic status reports or conferences.


2.3.Judges should demand attorney competence.


2.4.Judges should encourage the parties to meet before discovery commences to develop a realistic discovery plan.


2.5.Judges should encourage proportionality in preservation demands and expectations and in discovery requests and responses.


2.6.Judges should exercise their discretion to limit or condition disproportionate discovery and shift disproportionate costs.


2.7.If necessary, judges should exercise their authority to issue sanctions under the relevant statutes, rules, or the exercise of inherent authority on parties and/or counsel who create unnecessary costs or delay, or who otherwise frustrate the goals of discovery by “gaming the system.”




3.These broad recommendations should not be interpreted to mean that judges should issue blanket orders that dictate the scope of discovery, the nature of the parties’ discovery requests or responses, the form or forms of production, or any other details of the conduct of discovery. Our civil litigation system does not contemplate that a judge conducts discovery, and e-discovery in particular is fraught with highly technical and case-specific issues that are better left to the parties to resolve. Moreover, the recommendations transcend the specific rules of civil procedure that may be in effect in any particular jurisdiction. The recommendations can be applied equally to federal or state litigation, and in every court or action in which discovery is allowed, from family court to complex commercial court.




4.The recommendations are made with the understanding that there may be circumstances that require a judge to bring pressure to bear on the parties and attorneys, who, left to their own devices, may increase burdens and cost of litigation.


5.The above recommendation, that “judges should demand attorney competence,” requires some extended discussion. Attorneys, for the most part, are generalists. Some focus on particular areas of the law. However, whatever area they may practice in, attorneys, as a general proposition, are not expert in the technologies that can be encountered in e-discovery. For example, not every attorney should be expected to develop mechanisms for, and conduct, automated searches.



6.What attorneys should be expected to be is competent within the meaning of the Model Rules of Professional Conduct and/or its federal and state equivalents. For example, and at a minimum, an attorney should understand how to reasonably ensure client confidences when using email. Moreover, an attorney should understand when she needs the assistance of an e-discovery consultant. These are simply not matters of ethics: Attorney incompetence in e-discovery can lead to the waste of court and party resources and unnecessarily increase the costs and time of civil litigation.



7.In addition to the recommendations set forth above, judges may consider whether the appointment of a special master under FRCP 53 or its state equivalent would be appropriate to address ESI-related issues in specific civil actions when the expense of a special master is justified. Plainly, the appointment of a special master should be a rare event. However, given the volume of ESI that might be in issue, a special master might assist a court in, for example, undertaking the in camera review of ESI alleged to be confidential because of, among other things, attorney-client privilege and/or work product protection.



As an alternative to the appointment of a special master, judges may consider, if authorized by rule or order, a mediator who might be appointed to assist the parties to resolve their discovery disputes.



8.The following section briefly analyses each juncture in discovery at which judicial action is necessary and desirable, presents the issues the judge is likely to confront, suggests possible strategies for encouraging cooperative solutions to those issues, presents forms, stipulations, and orders that have been used to resolve the issues, and recommends further reading for those who wish to learn more about those particular issues.


9.The next section of the Resources, “The Stages of Litigation from a Judge’s Perspective,” includes sample orders, representative decisions, and further readings published by The Sedona Conference®. Moreover, as noted above, the separate Addendum to the Resources identifies various lawyer-authored articles.


10.What follows immediately below are some general references to materials that may inform the reader on the “General Recommendations for Judges”:

10.1.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(March 2012).



10.1.1.“The Sedona Conference® Commentary on Ethics and Metadata focuses on the ethical considerations of the inclusion and review of metadata in the non-discovery and discovery contexts.



10.2.In re Taylor, 655 F.3d 274, 288 (3d Cir. 2011) (“We appreciate that the use of technology can save both litigants and attorneys time and money, and we do not, of course, mean to suggest that the use of databases or even certain automated communications between counsel and client are presumptively unreasonable. However, [Fed. R. Civ. P. 11] requires more than a rubber-stamping of the results of an automated process by a person who happens to be a lawyer.”).



10.3.Ronald J. Hedges, The Flow of Litigation (2009).



10.3.1.This one-page chart is intended to assist judges in visualizing the stages of a federal civil action, from prelitigation issuance of a litigation hold through pleadings, discovery, motions and trial. It suggests opportunities for judges to, among other things, schedule meaningful status conferences, and stage motion-and-discovery practice to create opportunities for early case resolution.




10.4.Special Master’s Order No. 1, Kapunakea Partners v. Equilon Enterprises LLC, No. 09-00340 ACK-KSC (D. Hawai'i June 18, 2012).


10.5.Preliminary Order Appointing Special Master, Kapunakea Partners v. Equilon Enterprises LLC, No. 09-00340 ACK-KSC (D. Hawai’i Apr. 9, 2012).


10.6.Order Setting Forth Scope of Special Master’s Duties, Kapunakea Partners v. Equilon Enterprises LLC, No. 09-00340 ACK-KSC (D. Hawai’i Apr. 9, 2012).


10.7.Order, Cannata v. Wyndham, 2:10-CV-00068-PMP, 2012 WL 528224 (D. Nev. Feb. 17, 2012) (discussing, among other things, the appointment of a special master).