Published on Nov 14, 2017 The Federal Judicial Center (FJC) has just updated one of the more useful and practical guides for addressing electronic discovery. Entitled Managing Discovery of Electronic Information, the guide provides common sense direction to judges on how to best manage discovery and move parties toward the ultimate resolution of their dispute. While the publication is designed for judges, practitioners should take note of its recommendations and tailor their advocacy accordingly. Three of the most significant directives from the publication are discussed below.
Active Judicial Management
The most striking aspect of the guide is its emphasis on active judicial management of the discovery process. The resource directs judges to manage their cases by proactively raising issues to be considered by the parties. By so doing, judges can better address the factors that increase costs and cause delays:
The judge needs to work with the lawyers to ensure that planned discovery is reasonable and proportional to the needs of the case and may need to intervene before misunderstandings lead to disputes and create significant cost and delay.
The guide also recommends that judges be quick and decisive in their decision-making. Delays will be inevitable if judges allow discovery differences between the parties to linger without resolution:
When disputes do arise, it is often important to ensure that parties raise the disputes quickly and that the judge resolves the disputes quickly, or the litigation will simply stop in its tracks.
The publication also observes that the demands of eDiscovery are distinct from paper discovery and, as a result, “may require more frequent and intensive judicial involvement” than would have been required in the paper era.
ESI Preservation
The guide also emphasizes the need for active judicial management as a method for either preventing or resolving disputes over ESI preservation. It repeatedly urges judges to unilaterally raise the issue of preservation and encourage the parties to discuss the scope of preservation required for the case.
While the “temporal” scope of preservation (i.e., the relevant time period) is consequential, the more challenging and significant issue is “spatial” preservation. Accordingly to the guide, spatial preservation refers to the nature of relevant ESI to be preserved. Because certain categories of ESI might only be “marginal[ly] relevant,” judges should direct the parties to consider proportionality-based limitations on preservation requirements.
Such limitations may be memorialized in preservation agreements or orders which specify the “categories or sources of ESI [to] be preserved.” These agreements or orders benefit requesting parties by offering greater certainty regarding the scope of preservation. They also safeguard responding parties against unreasonable claims of spoliation. Despite the utility of preservation stipulations or orders, the guide cautions that they must be “narrowly drawn” to prevent unreasonable preservation burdens that “interfere with a party’s day-to-day operations” or result in “preservation steps that are unrealistic or difficult to follow.”
The Rule 26(f) Conference
The guide also repeatedly spotlights the need for parties to hold an effective Rule 26(f) conference. According to the publication, courts should ensure that “a meaningful Rule 26(f) conference take[s] place and that a meaningful discovery plan [is] submitted for use in the Rule 16 conference with the court.” The guide delineates several topics of discussion that can help the parties engage in a “meaningful” 26(f) conference. It also urges Rule 26(f) be considered “an ongoing process” so parties can identify discovery disputes for informal or rapid judicial resolution throughout the litigation. Encapsulating its guidance on this point, the guide observes that Rule 26(f) “should not be viewed solely as a procedural ticket to be punched before formal discovery can begin.”
Beyond these issues, the publication contains various additional guidelines that should prove useful for both courts and counsel. With the FJC having recently published the third version of this resource, it behooves eDiscovery practitioners to gain an understanding of guide’s direction on the issues.
