Page 12 - E-Discovery

S12 | MONDAY, OCTOBER 6, 2014 | E-Discovery
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Merits
level’ of discovery that [is] proportionate boundaries of cooperation in the discovery LOT PROGRAM—REPORT ON PHASE ONE (MAY 20, 2009
to the needs of the case, the burden and process.
TO MAY 1, 2010), Principle 2.04.
20. See U.S. DIST. COURT FOR THE DIST. OF DEL., DE-
expense of which is borne by the producing • ••
FAULT STANDARD FOR DISCOVERY, INCLUDING DISCOV-
« Continued from page S9
party with the provision that any further •••••••••••••••••••••••••• ERY OF ELECTRONICALLY STORED INFORMATION (ESI)
ity. Courts in numerous jurisdictions have discovery must be conditioned on a showing 1. DISCOVERY SUBCOMM., ADVISORY COMM. ON 2, 7 (Dec. 8, 2011).
adopted rules and guidelines to address of good cause and an assessment of cost allo- CIVIL RULES, REPORT: RULE 37(e), at 3 (April 10-11, 2014) (Tab 3-A of MEETING OF THE ADVISORY COMMIT- 21. U.S. DIST. COURT FOR THE N. DIST. OF CAL., MODEL STIPULATED ORDER RE: DISCOVERY OF ELEC-
proportionality. The Commercial Division cation.”46 He points out: “The key, however, TEE ON CIVIL RULES).
TRONICALLY STORED INFORMATION FOR STANDARD
has actively implemented measures to limit is in iguring out how to deine the amount 2. Judge Paul W. Grimm & David S. Yellin, “A Pragmatic LITIGATION 2.
Approach to Discovery Reform: How Small Changes Can 22. See Kleen Prods. v. Packaging Corp. of Am., No. 10
the scope and reduce the cost of discov- of ‘free discovery’ so that it is suficient to Make a Big Difference in Civil Discovery,” 64 S.C.L. REV. 495, 511 (2013) [hereinafter “Pragmatic Approach”].
C 5711, 2012 WL 4498465, at *18 (N.D. Ill. Sept. 28, 2012).
23. Id. at *8, *12.
ery. Rule 11-a limits the number of inter- give the requesting party a fair shot at the 3. Nicholas M. Pace & Laura Zakaras, RAND Inst. for 24. Duke Report, supra note 11, at 4.
rogatories to 25 and the scope of inquiry discovery it needs, while simultaneously pro- Civil Justice, “Where the Money Goes: Understanding 25. Id. at 6.
by subject matter.41 A proposed rule limiting tecting the producing party from excessive Litigant Expenditures for Producing Electronic Discov- 26. FED. R. CIV. P. 26(b)(1).
depositions to 10, seven-hour depositions cost and burden.”47
ery,” 16 n.39, 103 (2012) [hereinafter Rand Report].
4. LexisNexis Discovery Servs., “How Many Pages in 27. Duke Report, supra note 11, at 18-19 (emphasis
added).
for each side is currently pending.42 Under The limits of “free discovery” have been a Gigabyte?,” LEXISNEXIS, http://www.lexisnexis.com/ 28. Id. at 19.
Rule 9 governing accelerated adjudications, tested in class actions, which by nature applieddiscovery/lawlibrary/whitePapers/ADI_FS_Pag- 29. SEDONA CONFERENCE WORKING GRP. ON ELEC.
parties may agree to limit discovery.43 Judge involve asymmetrical discovery:
esInAGigabyte.pdf.
5. Rand Report, supra note 3 at 17, 19.
DOCUMENT RETENTION & PRODUCTION, THE SEDONA CONFERENCE COMMENTARY ON PROPORTIONALITY
Paul W. Grimm of the U.S. District Court of The Court is persuaded, it appearing that 6. Id. at 86.
IN ELECTRONIC DISCOVERY, Principle 4, at 11-12 (Janu-
Maryland has promulgated an order phas- Defendant has borne all of the costs of 7. Letter from William H.J. Hubbard, Assistant Profes-
ary 2013) [hereinafter The Sedona Conference Propor-
ing discovery to focus irst on the facts that complying with Plaintiffs’ discovery to sor, Univ. of Chi., to Comm. on Rules of Practice & Proce- tionality Principle].
are most important to resolving the case: date, that the cost burdens must now dure 1 (Feb. 18, 2014).
8. Lawyers for Civil Justice, “Now Is the Time for 30. McPherson v. Canon Bus. Solutions, No. 12-7761, 2014 WL 654573, at *9 (D.N.J. Feb 20, 2014).
“Phase 1 Discovery is intended to be nar- Meaningful New Standards Governing Discovery, Pres- 31. Kleen Prods. v. Packaging Corp. of Am., No. 10 C
rower than the general scope of discovery shift to Plaintiffs, if Plaintiffs believe ervation, and Cost Allocation,” 13 n.52 (March 15, 2012).
5711, 2012 WL 4498465, at *18 (N.D. Ill. Sept. 28, 2012).
they need additional discovery. . The 9. Letter from David M. Howard, Corporate Vice Presi- 32. The Sedona Conference Proportionality Principle
stated in Rule 26(b)(1),” and while the court Court is irmly of the view that discovery dent, Microsoft Corp., to Judge David G. Campbell, Chair, Advisory Comm. on Civil Rules, U.S. Dist. Court 5 (Aug. 4, supra note 29, at 12 (citation omitted).
33. In re Coventry Healthcare ERISA Litig., 290 F.R.D.
may permit additional discovery for good burdens should not force either party to 31, 2011).
471, 476 (D. Md. 2013).
cause, the requesting party must show why succumb to a settlement that is based 10. COMM. ON RULES OF PRACTICE & PROCEDURE 34. Steven Teppler, “E-Discovery: Where We’ve Been,
it should not pay for it.44
on the cost of litigation rather than the OF THE JUDICIAL CONFERENCE OF THE U.S., PRELIMI- Where We Are, Where We’re Going,” 12 AVE MARIA L.
Proportionality: Cost-Allocation. Cost- merits of the case.48
NARY DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF BANKRUPTCY AND CIVIL PROCE- REV. 1, 32-33 (Winter 2014).
35. FED. R. CIV. P. 26(b)(2)(C)(i).
allocation can help prevent the use of e-dis- DURE 265 (Aug. 2013).
36. Kleen, 2012 WL 4498465, at *14.
covery as a weapon. The proposed amend- Conclusion
11. DUKE CONFERENCE SUBCOMM., ADVISORY 37. Id.
ment to Rule 26(c)(1) adds “the allocation of COMM. ON CIVIL RULES, REPORT 3 (April 10-11, 2014) [hereinafter Duke Report] (Tab 2-A of MEETING OF THE 38. MBIA Ins. v. Credit Suisse Sec. (USA), Index No.
603751/2009, 2014 N.Y. Slip Op. 31871(U), at *2 (Sup. Ct.
expenses” as a term that may be included in a The cost of discovery has become increas- ADVISORY COMMITTEE ON CIVIL RULES).
N.Y. County July 17, 2014).
protective order. As the Duke Subcommittee ingly unmanageable and is hindering the reso- 12. Residential Funding v. DeGeorge Fin., 306 F.3d 99, 39. Id. (citation omitted).
noted, “Rule 26(c)(1) now authorizes an order lution of cases on the merits. Jurisprudence 107 (2d Cir. 2002); Faas v. Sears, Roebuck & Co., 532 F.3d 40. Id. at *3.
to protect against ‘undue burden or expense’” on e-discovery is proliic, and the trend is 633, 644 (7th Cir. 2008).
13. Victor Stanley v. Creative Pipe, 269 F.R.D. 497, 523 41. COMMERCIAL DIV. R. 11-a, N.Y. CT. RULES §202.70. 42. Memorandum from John W. McConnell, Counsel,
and while “[s]ome courts are exercising that to put an end to excessive preservation and (D. Md. 2010).
State of N.Y., Uniied Court Sys., to All Interested Persons
authority now,” it would be “useful to make production of ESI. Parties must cooperate to 14. Discovery Subcommittee Report, supra note 1, at (June 20, 2014).
15.
43. COMMERCIAL DIV. R. 9, N.Y. CT. RULES §202.70.
the authority explicit . to ensure that courts curtail discovery to what is proportional to 15. Id. at 3.
16. Standing Order M10-468, No. 1:11-mc-00388-LAP, at 44. Standing Discovery Order Issued by U.S. District Judge for the District of Maryland Paul W. Grimm at 1
and the parties will consider this choice as an the needs of the case, and the courts are more 20-21 (S.D.N.Y. Nov. 1, 2011).
(April 9, 2013).
alternative to denying requested discovery inclined to seek good cause before compelling 17. COMMERCIAL DIV. R. 8(b), N.Y. CT. RULES §202.70.
45. Duke Report, supra note 11, at 9.
or ordering it despite the risk of imposing discovery, and shift costs to the requesting 18. Thomas Y. Allman, “Local Rules, Standing Orders, 46. “Pragmatic Approach,” supra note 2, at 523.
undue burdens and expense.”45
party when appropriate. Future cases should and Model Protocols, Where the Rubber Meets the Dis- covery Road,” 19 RICH. J.L. & TECH. 8, 31 (2013).
47. Id. at 524.
48. Boeynaems v. LA Fitness Int’l, 285 F.R.D. 331, 341-42
Grimm deines “free discovery” as “a ‘base
further reine the scope of discovery and the
19. SEVENTH CIRCUIT ELECTRONIC DISCOVERY PI-
(E.D. Pa. 2012).

Arbitration
tor can limit a request by a party if he/she the many guidelines and protocols that are from which the electronically stored infor-
has no real understanding of the underlying offered will only be successful if the parties mation was sought. Cost shifting has clearly
technology behind the electronic data and and the arbitrators work together to incor- had an impact, and it’s a sensible solution to
« the many forms in which it may be stored.
porate them as sensibly as possible into the curtailing some of the excesses that occur
Continued from page S5
eficiency and economy of the proceedings Finally, the Chartered Institute of Arbi- process, with an acknowledgment that there when one party is not held to account for

while allowing parties to obtain necessary trators has also issued guides for handling is no “one size its all” solution and that each unreasonable requests.
and pertinent evidence. Narrowing the time electronic document exchange, and the ICC case may require differing levels of disclosure
ields, search terms and iles to be searched, Commission on Arbitration and ADR has of ESI. The challenge for the parties and the Conclusion
as well as testing for burden are some of the issued the “ICC Commission Report on Man- Tribunal is in getting that balance right, to
tools for controlling e-discovery that should aging E-Document Production.” Both sources ensure the most cost-effective and timely E-discovery is here to stay, and it will
be considered.”
provide helpful and detailed guidance on the arbitration procedure possible.
continue to evolve as technology evolves.
Interestingly, the NY Guidelines provide production of ESI. Many other institutions, The good news is that the rules and guide- The parties, institutions, and arbitrators all
that the arbitrators “should at least familiarize too numerous to discuss in this piece, have lines provided by the institutions have been play an important role in ensuring that the
themselves generally with the technological also sought to provide guidance to the parties of great assistance to both the parties and arbitral process itself does not get lost in
issues that arise in connection with electronic with respect to ESI issues.
the arbitrators, and some of the fears that the midst of this evolution. The goal must
data. Such issues include the format in which To return to the original question posed in e-discovery had become out of control were be to keep the arbitration process as user-
documents are produced, and the availability this article as to how and whether the insti- unfounded. There seems to be a consensus friendly and effective as possible, and to
and need (or lack thereof) for production of tutions have reacted to the phenomenon of that the more guidance the parties and the avoid destroying, with excessive costs and
“metadata.” A basic understanding by the e-discovery or ESI, and the eficacy of some arbitrators have, the more they are able to delays, an alternative to litigation that has

arbitrator of the pertinent technology and of the proposed solutions, it is clear that the craft sensible solutions that provide the par- allowed businesses to work globally with the
terminology can place the arbitrator in a bet- institutions have indeed stepped up to the ties with a fair, yet economical and timely assurance that there is an effective solution
ter position to assist the parties in contain- plate and provided the parties with a multi- process. It may take time to get the balance for them should a dispute arise. There is no
ing the attendant costs and potential delays tude of options from which to navigate the just right, but it seems clear that the proposed doubt that the institutions will continue to
associated with the retrieval and exchange often murky waters of the e-discovery pro- solutions are indeed having a positive impact meet these challenges, with input from the
of electronic data.” Thus the NY Guidelines cess. In fact one might argue that there is an on the ESI process. The rules and guidelines users and the arbitrators themselves. None
put the onus on the arbitrators to become embarrassment of riches for those seeking have allowed the parties and the Tribunal to of us really know where all of these advances
more familiar with the technology, in order guidance. The common theme appears to be eliminate a lot of the waste that was initially in technology are headed, but judging on how
that they can properly assist the parties in an attempt to make the requests for this infor- associated with ESI production due to the quickly the institutions acted to address the
tailoring their requests for electronic data. mation as speciic and tailored as possible, duplicative nature of much of the informa- ESI phenomenon, I remain conident that they
This approach makes a great deal of sense as and to avoid the “ishing expeditions” that tion sought and the overly broad searches will continue to meet the technological chal-
it seems dificult to imagine how an arbitra-
often happen in the court system. However,
that were putting such a burden on the party
lenges that lie ahead.