Michael P. Carbone

1201 Brickyard Way, Suite 201 Point Richmond, CA 94801 Tel 510.234.6550 Fax 415.480.1799

eDiscovery > eDiscovery Reform

 

Discovery Reform in the Digital Age
 
Originally Published in the Los Angeles and San Francisco Daily Journal
Fall 2012
 
By Michael P. Carbone
 
 
Lawyers, clients and courts have long complained about the abuse of the discovery process. Serious proposals for reform finally emerged when e-discovery became the principal driver of costs. The Sedona Conference, which is a nonprofit research and educational institute dedicated to the study of law and policy for complex litigation, took the lead by developing The Sedona Principles, which made recommendations for best practices in electronic document production that have been widely accepted throughout the United States. 
 
The 7th Circuit E-Discovery Program
 
Building upon the work of The Sedona Conference, the 7th Circuit Electronic Discovery Committee, which is comprised of judges, lawyers, academics and consultants, created the 7th Circuit Electronic Discovery Pilot Program, which includes the following principles that are embodied in a standing order:
 
  • That counsel cooperate in facilitating and reasonably limiting e-discovery requests and responses
  • That requests for production of electronically stored information (ESI) and related responses shall be reasonably targeted, clear, and as specific as possible
  • That prior to the initial status conference with the court, counsel shall meet and confer in order to identify relevant and discoverable ESI, the scope of discoverable ESI to be preserved by the parties, the formats for preservation and production of ESI, the potential for conducting discovery in phases, and procedures for handling inadvertent production of privileged ESI
  • That attorneys be knowledgeable about how their clients' ESI is stored and retrieved
  • That in most cases the parties should appoint an e-discovery liaison to perform various tasks, including participation in e-discovery dispute resolution
  • That vague and overly broad preservation orders should not be sought or entered and that preservation requests and responses should transmit specific and useful information
  • That all parties and their counsel should take reasonable and proportionate steps to preserve relevant and discoverable ESI within their possession, custody, or control.
 
Phase 1 of the Pilot Program ran from October 2009 through March 2010, and thereafter the Committee presented a Report.  Participating judges felt that the principles were having a positive effect on counsel’s attention to, and knowledge of, relevant technology when addressing e-discovery issues. They also felt that the principle of proportionality and the involvement of e-discovery liaisons contributed to a more efficient process. Participating lawyers reported that the program promoted fairness and fostered more amicable dispute resolution. The Program is now in Phase 2 and the Committee intends to present its final report later this year.
 
Proportionality
 
As stated in The Sedona Principles:  "Proportionality requires consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy." It is also one of the bases upon which a court must limit discovery.  Federal Rule of Civil Procedure 26(b)(2)(C) requires the court to limit the frequency or extent of discovery that would otherwise be allowed if it determines that ”…the burden or expense of the proposed discovery outweighs 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.”
 
The E-discovery Liaison
 
The purpose of the e-discovery liaisons that are required by the 7th Circuit Program in most cases is to help resolve any disputes, such as those which may arise concerning the preservation or production of ESI. They are required to meet and confer and to attend court hearings. A liaison may be an attorney, a consultant, or an employee. Whatever his or her qualifications may be, the liaison must: (a) be prepared to participate in e-discovery dispute resolution; (b) be knowledgeable about the party’s e-discovery efforts; (c) be, or have reasonable access to those who are, familiar with the party’s electronic systems and capabilities in order to explain those systems and answer relevant questions; and (d) be, or have reasonable access to those who are, knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues, and relevant information retrieval technology including search methodology.
 
 
Developments in California
 
California has also moved in a direction that is similar to the Sedona Conference with the enactment of the California E-Discovery Act, which amended various sections of the Civil Discovery Act and added Sections 1985.5 and 2031.285 to the Code of Civil Procedure. Among other reforms the amendments provide that a subpoena for the production (including inspection, copying, testing, or sampling) of electronically stored information may be opposed if the person who is subpoenaed can prove that the information is not reasonably accessible because of undue burden or expense. The subpoenaing party must then be able to show good cause for the production of the information, and if the court does find good cause then it may set conditions for the production, including allocation of the expense. 
 
California has also adopted the principle of proportionality, using language similar to F.R.C.P. 26(b)(2)(C). The California Rules of Court do require parties to meet and confer regarding e-discovery matters prior to their initial case management conference. See Cal. Rule of Court 3.724, par. 8. Although California does not require the use of e-discovery liaisons, there is no reason why parties cannot do so voluntarily.
 
The Use of ADR
Courts prefer to see parties resolve their e-discovery matters through negotiation. In one case the court stated that "... [i]dentifying relevant records and working out technical methods for their production is a cooperative undertaking, not part of the adversarial give and take."  (In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650, 660 (M.D. Fla. 2007)) In some cases, however, parties or their e-discovery liaisons will have difficulty in resolving all of the issues on their own, and in those situations they should consider the use of alternative dispute resolution. 
 
Litigators are familiar with the use of special masters and referees to manage complex discovery matters.  Federal courts can appoint special masters for this purpose under Federal Rule 53.  In California state practice, courts can appoint discovery referees under Code of Civil Procedure Section 639. However, while special masters and referees can be useful, they do not necessarily facilitate negotiation. Their only responsibility is to submit reports to the court that contain recommendations and proposed rulings. Thus, the Sedona Conference was wise to call for the use of e-discovery mediators.
 
The use of a mediator can be very effective in the context of a meet and confer.  The parties can use the mediator to facilitate the process.  Or, the parties can begin the meet and confer on their own and if they are unsuccessful in resolving all of the issues, they can bring the mediator in to help them finish the task. In either case, the mediator will help the parties to find their own solution.
 
Mediation is also a confidential process, and the mediator does not report what happened during the mediation to the court. Thus, if counsel need to discuss sensitive information about their clients’ ESI, or how it has been preserved and maintained, they can do so without fear of having their statements become public.
 
The success of any mediation depends upon the participation of all the persons whose authority, input or consent will be necessary in order to reach an agreement.  In the case of an e-discovery mediation the participants should include the parties, their corporate counsel, retained counsel, IT officers, and any consultants who are being used.  Having all of these individuals together in one place will greatly improve the odds for success, while the absence of a key person may cause the mediation to fail.
 
The resolution of e-discovery matters has emerged as a new application of mediation, and e-discovery mediation is likely to become more widespread in the future along with the use of e-discovery liaisons. Discovery battles often lead to an acrimonious climate that is not conducive to settlement. Early and cost-effective resolution of discovery issues may well have the opposite effect. The realization that it is possible to reach agreement on e-discovery should give the parties reason to believe that further progress can be made. Having the information that has become available through e-discovery, and perhaps other forms of discovery as well, the parties may choose to continue working with the mediator to see if the lawsuit itself can be settled.
 
Michael P. Carbone is a mediator, arbitrator and referee in Point Richmond, California, and a member of the 7th Circuit Electronic Discovery Committee’s National Outreach Subcommittee. His website is found at www.mpcdisputeresolution.com.
© Michael P. Carbone 2012


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