6. Defining the scope of e-discovery

6.1.All discovery in the federal courts is governed by FRCP 26(b)(1), which provides that parties can seek discovery of non-privileged information relevant to any party’s claim or defense and, for good cause shown, “information relevant to the subject matter involved in the action.” The scope of discovery may be different in state rules. However, the scope of e-discovery is essentially the same as that of discovery generally.

6.2.Issues presented

6.2.1.Requests for discovery of ESI often lack relation to the issues in the action. For example, parties may seek “all email” or “all databases” from an opposing party. In the first instance, the scope of e-discovery should be defined by the parties with reference to claims and defenses set forth in the pleadings. However, the parties may request, and the court may consider, broader subject matter discovery for good cause. Since one or both parties may desire broader discovery, or may be unsure as to what the appropriate scope of discovery should be, the court should require that the parties negotiate the scope of discovery and attempt to reach agreement at the outset. The scope may later be modified by agreement or by court order; but it should not be undefined or allowed to drift.

6.2.2.Of particular concern for judges is the rise of social media, both in terms of simple volume, near-universality of access and use, and potential as a source of discoverable information. Discovery of social media can be extensive and can implicate privacy interests of parties and nonparties who participate in social media sites that include discoverable ESI. Consistent with sound case management principles, judges should strive to focus discovery of social media to reduce volume and address legitimate privacy interests of parties and nonparties. Moreover, discovery of particular social media sites may be subject to, and limited by the Stored Communications Act, 18 U.S.C.A. § 2701 et. seq.

6.2.3.There may be instances where a party in a civil action seeks to engage in so-called transnational discovery, that is, discovery of ESI that is located in another country and subject to the possession, custody, or control of an adversary party. In that circumstance, production (defined very broadly) of ESI may be subject to a personal privacy and/or commercial blocking statute of the host country. Production of such ESI in violation of such a statute may expose the party to civil and/or criminal sanctions.

6.3.Suggested judicial management strategies

6.3.1.Require that the discovery plan address the scope of e-discovery and describe any disputes as to scope.

6.3.2.Require the party seeking discovery into matters beyond the claims and defenses of the parties to explain why the proposed broader discovery is relevant and necessary.

6.3.3.Require parties seeking broader discovery to demonstrate that the proposed discovery is proportionate to the matter, with reference to FRCP 26(b)(2)(C).

6.3.4.Resolve any disputes as to scope in the initial case management order.

6.3.5.Require the parties, at least in the first instance, to focus any requests for discovery of social media to relevant and necessary ESI.

6.3.6.Require the parties to consider privacy interests of parties and nonparties and, if appropriate, consider issuance of a Rule 26(c) protective order limiting access to the ESI.

6.3.7.When transnational discovery is in dispute, require the parties to address any foreign law governing the production of protected ESI and consider, as an alternate to ordering production, ordering the requesting party to proceed by letters rogatory.

6.3.8.Consider sequencing or phasing e-discovery, focusing on discovery of ESI directly related to claims and defenses in the pleadings in the first instance to expedite the discovery process and deferring rulings on broader e-discovery requests until the first phase is completed.

6.4.Sample orders

6.4.1.Special Master’s Order No. 1, Kapunakea Partners v. Equilon Enterprises LLC, No. 09-00340 ACK-KSC (D. Hawai'i June 18, 2012) (limiting scope of e-discovery in first instance to 30(b)(6) depositions).

6.4.2.Preliminary Conference Stipulation and Order (Form), New York Supreme Court, County of Nassau, Commercial Division (Feb. 1, 2009).

6.5.Representative decisions

6.5.1.In re Air Cargo Shipping Services Antitrust Litig., 2010 WL 2976220 (E.D.N.Y. July 23, 2010) (transnational discovery).

6.5.2.Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010) (Stored Communications Act).

6.5.3.E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010) (social media discovery).

6.5.4.Genger v. TR Investors, LLC, 26 A.3d 180 (Del. 2011).

6.6.Further reading

6.6.1.MANUAL FOR COMPLEX LITIGATION (FOURTH) § 11.221, Case-­-Management Plan (2004).

6.6.2.Kristen L. Mix, Discovery of Social Media, 5 FED. CTS. L. REV. 119 (2011).