Welcome to Module 3-J.
Two e-Discovery Guides for Judges Provide Good Advice for All
There are now two e-discovery guides for judges, one for state court judges and one for federal. Everyone involved in e-discovery, not just judges, should become familiar with these guidelines. After all, the judge that decides your case may consult one of these guides. Even if they don’t, you may want to cite to them to support your argument. This module discusses these guides.
The Federal Judges Guidebook
The newest guide, Managing Discovery of Electronic Information: A Pocket Guide for Judges, was released in late January 2008. It was written for federal judges by federal judges, namely Judge Barbara J. Rothstein and Judge Ronald J. Hedges, with the help of Elizabeth C. Wiggins, an educator of federal judges. The Pocket Guide was published by the Federal Judicial Center, the education and research arm of the federal court system. The Chairman of the Board of the Federal Judicial Center is none other than the Chief Justice of the Supreme Court, currently Justice John Roberts (seated in the center of the picture of the Supreme Court Justices above).
The lead author is Judge Barbara Rothstein. She has been the Director of the Federal Judicial Center since 2003, and has a strong interest in electronic discovery. Her co-author, Judge Hedges, is a former Magistrate Judge in New Jersey who is well known in e-discovery circles. Judges Hedges retired from the bench in 2007 to go into private practice as an e-discovery lawyer. The third co-author, Elizabeth Wiggins, J.D., PhD., was a Project Director and Senior Research Associate at the Federal Judicial Center. Here is the Table of Contents of their guide.
The Pocket Guide tries to persuade federal judges to be much more proactive in the management of e-discovery. As Judge Rothstein explains in her Preface, the Pocket Guide encourages judges to take the initiative in e-discovery issues:
It [the Pocket Guide] encourages judges to actively manage those cases involving ESI, raising points for consideration by the parties rather than awaiting the parties’ identification and argument of the matters.
With a few notable exceptions, this is still not the practice in most District Courts. In fact, very few federal judges have even modified their standard form Case Management Order to implement the new rules. Further, unless the parties raise ESI issues, they are rarely mentioned in Rule 16(b) conferences. Typically, judges wait until e-discovery disputes are raised by the parties. All too often, this still happens near the end of the discovery process, and not the beginning as the new rules contemplate. The Bar has been slow to embrace the requirement that e-discovery issues be fully discussed at Rule 26(f) attorney conferences. This is primarily because most attorneys do not understand e-discovery, are not sure what to say, and may not even know for sure whether their case involves electronically stored information. (Hint – it almost certainly does.) They need “encouragement” from the bench, which is exactly what the authors of the Pocket Guide recommend at page 4:
All too often, attorneys view their obligation to “meet and confer” under Federal Rule of Civil Procedure 26(f) as a perfunctory exercise. When ESI is involved, judges should insist that a meaningful Rule 26(f) conference take place and that a meaningful discovery plan be submitted.
The Pocket Guide includes a chart summarizing the topics that attorneys should discuss (remember this is a 26-page pocket guide intended for quick reference, not a detailed text):
Discussion topics for a Rule 26(f) conference:
The guide also identifies the reoccurring problems inherent in e-discovery so that judges will know what questions to ask and have a better appreciation of the issues. Here is the chart included in the Introduction at page 4 as a reminder to judges of how ESI differs from paper information:
How ESI differs from paper information:
The Pocket Guide explains how these differences make litigation holds imperative, often lead to disputes concerning the scope of discovery, make document reviews difficult, and make inadvertent production of privileged information much more likely. The important problem of proportionality is also discussed at page 5:
In addition, because deleted or backup information may be available, parties may request its production, even though restoring, retrieving, and producing it may require expensive and burdensome computer forensic work that is out of proportion to the reasonable discovery needs of the requesting party.
Rule 26(b)(2)(B)&(C) apply the proportionality principle for hard-to-access ESI and require a balancing test. The guide at page 8 properly suggests that judges first require the parties to search the available easy-to-access ESI before even considering an expensive search of relatively inaccessible data:
When hard-to-access information is of potential interest, the court should encourage lawyers to negotiate a two-tiered approach in which they first sort through the information that can be provided from easily accessed sources and then determine whether it is necessary to search the less-accessible sources.
The Pocket Guide points out the 7 factors judges should consider in a balancing test as to whether the benefits of production outweigh the burdens, as delineated in the Commentary to Rule 26(b)(2)(C). It goes on to suggest a variety of available tools to assist in weighing these factors, including: prior full review of the reasonably accessible sources; specific and tailored discovery requests; use of sampling techniques; discovery on these discovery issues; and cost shifting.
The federal guide reviews all of the new rules on e-discovery in a similar manner. To those already well versed in the rules, the Pocket Guide contains no surprises, just good common sense advice on the meaning and application of the rules.
Pages 17-18 of the Pocket Guide address the issue of preservation orders. This important issue is addressed in the Comments to Federal Rule 26(f), and also in the state judges guidebook. I will discuss these various approaches to preservation orders, including that of the Sedona Conference, together at the end of this essay.
The State Judges Guidebook
An earlier state court judges’ guide on e-discovery was completed in August 2006. It is called the Conference of Chief Justices Guidelines For State Trial Courts Regarding Discovery Of Electronically-Stored Information. The Conference of Chief Justices is composed of the highest judicial officer of the fifty states and U.S. territories. It is designed to provide a forum for the top state court judges:
. . . to meet and discuss matters of importance in improving the administration of justice, rules and methods of procedure, and the organization and operation of state courts and judicial systems, and to make recommendations and bring about improvements on such matters.
One such matter they considered important to the administration of justice was e-discovery. For that reason they sponsored panels of experts to meet over a lengthy period to develop e-discovery guidelines for all state court judges. The public was also provided ample time for comments and eventually the panels proposed ten guidelines that were adopted by the Conference of Chief Justices. The Chief Justice Guidelines are not binding law in any state, but are still important because they are endorsed by this prestigious body. They serve as an influential reference in state courts until such time as the states enact their own versions of the federal rules governing e-discovery.
The Introduction to the Chief Justice Guidelines includes an explanation of its purpose:
Until recently, electronic discovery disputes have not been a standard feature of state court litigation in most jurisdictions. However, because of the near universal reliance on electronic records both by businesses and individuals, the frequency with which electronic discovery-related questions arise in state courts is increasing rapidly, in all manner of cases. Uncertainty about how to address the differences between electronic and traditional discovery under current discovery rules and standards “exacerbates the problems. Case law is emerging, but it is not consistent and discovery disputes are rarely the subject of appellate review.
These Guidelines are intended to help reduce this uncertainty in state court litigation by assisting trial judges faced by a dispute over e-discovery in identifying the issues and determining the decision-making factors to be applied.
The guidelines begin with a definition of Electronically Stored Information. Although I think the federal rules were right not to define ESI at all, since technology changes so rapidly, the Chief Justices did a better job with the definition than the Uniform Law Commissioners later did in their proposed model state court rules. The Chief Justice Guidelines define ESI as:
. . . any information created, stored, or best utilized with computer technology of any type. It includes but is not limited to data; word-processing documents; spreadsheets; presentation documents; graphics; animations; images; e-mail and instant messages (including attachments); audio, video, and audiovisual recordings; voicemail stored on databases; networks; computers and computer systems; servers; archives; back-up or disaster recovery systems; discs, CD’s, diskettes, drives, tapes, cartridges and other storage media; printers; the Internet; personal digital assistants; handheld wireless devices; cellular telephones; pagers; fax machines; and voicemail systems.
The Chief Justice Guidelines take the same ”laundry list” approach to defining ESI which was earlier taken by the ABA in its 2004 Civil Discovery Standards. The official Comment to the Chief Justice Guidelines states, however, that the list “should be considered as illustrative rather than limiting, given the rapid changes in formats, media, devices, and systems.” How true!
The state guidelines then address the duty of lawyers to understand their clients’ IT systems whenever ESI is involved in a case. This is often called the Zubulake duty because it was so forcefully stated by Judge Scheindlin in Zubulake V. This is discussed in depth in Chapter Two of my first book, e-Discovery: Current Trends and Cases. The Chief Justices advise the state court judges at page 1 of the guidelines that:
In any case in which an issue regarding the discovery of electronically-stored information is raised or is likely to be raised, a judge should, when appropriate, encourage counsel to become familiar with the operation of the party’s relevant information management systems, including how information is stored and retrieved.
The guidelines go on to state that if a party intends to seek ESI in a case, then
. . . that fact should be communicated to opposing counsel as soon as possible and the categories or types of information to be sought should be clearly identified.
When a party to a case does not follow this guidance, and instead waits until near the close of discovery to make ESI demands, judges should be skeptical. This could be a discovery tactic, a trap designed to try to win a case by charges of spoliation, rather than on the merits. If a party wants ESI, they should ask for it early and clearly. They should not be allowed to lull the other side into a sense of complacency by their silence, and wait until the end of a case to make ESI production demands, hoping that perhaps some ESI will be lost in the interim. Cases should be won or lost or settled based on the merits of the case, not discovery tactics or inadvertent spoliation. That is exactly what this guideline is trying to accomplish.
Many state court rules do not include mandatory discovery conferences between counsel at the start of a case, and do not include mandatory initial disclosure of information. For that reason, the state judge Guideline Three talks in terms of judges encouraging counsel to meet and confer about e-discovery and exchange information. But Guideline Three at pages 2-3 also includes a fairly exhaustive list of 8 categories of information that judges may want to order the parties to provide to each other so as to facilitate agreement on e-discovery issues:
(1) A list of the person(s) most knowledgeable about the relevant computer system(s) or network(s), the storage and retrieval of electronically-stored information, and the backup, archiving, retention, and routine destruction of electronically stored information, together with pertinent contact information and a brief description of each person’s responsibilities;
(2) A list of the most likely custodian(s), other than the party, of relevant electronic data, together with pertinent contact information, a brief description of each custodian’s responsibilities, and a description of the electronically-stored information in each custodian’s possession, custody, or control;
(3) A list of each electronic system that may contain relevant electronically-stored information and each potentially relevant electronic system that was operating during the time periods relevant to the matters in dispute, together with a general description of each system;
(4) An indication whether relevant electronically-stored information may be of limited accessibility or duration of existence (e.g., because they are stored on media, systems, or formats no longer in use, because it is subject to destruction in the routine course of business, or because retrieval may be very costly);
(5) A list of relevant electronically-stored information that has been stored offsite or off-system;
(6) A description of any efforts undertaken, to date, to preserve relevant electronically-stored information, including any suspension of regular document destruction, removal of computer media with relevant information from its operational environment and placing it in secure storage for access during litigation, or the making of forensic image back-ups of such computer media;
(7) The form of production preferred by the party; and
(8) Notice of any known problems reasonably anticipated to arise in connection with compliance with e-discovery requests, including any limitations on search efforts considered to be burdensome or oppressive or unreasonably expensive, the need for any shifting or allocation of costs, the identification of potentially relevant data that is likely to be destroyed or altered in the normal course of operations or pursuant to the party’s document retention policy.
Guideline Four then suggests that after this exchange of information, the judge hold a discovery hearing to address any disputes or remaining e-discovery issues. This seems like a very sensible approach.
Guideline Five address the Scope of Discovery and establishes a balancing test as to whether requested information should be produced. This is similar to the seven factors listed in the Comments to federal Rule 26(b)(2)(B)&(C), but much more exhaustive. The Chief Justice Guidelines list 13 factors based on the earlier ABA Civil Discovery Standards.
Guideline Six concerns Form of Production and tracks the language then under consideration for use in the federal rules, namely production in either the form “ordinarily maintained” or in a “reasonably usable” form. Like federal Rule 34(b), the state guidelines also limit ESI production to one format.
Guideline Seven covers the Reallocation of Discovery Costs. It basically embodies the analysis conducted in Zubulake III. Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003).
Guideline Eight governs the Inadvertent Disclosure of Privileged Information. It does not include claw-back type protections and presumptions against inadvertent waiver, as Rule 26(b)(5)(B) does, but does suggest that state court judges be careful in finding waiver of privilege and first consider:
A. The total volume of information produced by the responding party;
B. The amount of privileged information disclosed;
C. The reasonableness of the precautions taken to prevent inadvertent disclosure of privileged information;
D. The promptness of the actions taken to notify the receiving party and otherwise remedy the error; and
E. The reasonable expectations and agreements of counsel.
The Ninth Guideline is on Preservation Orders, which I will discuss at the end; but first the Tenth Guideline on Sanctions. This guideline closely tracks federal Rule 37(f) (which has since been renumbered 37(e)), the so-called “safe harbor” rule protecting routine, good faith destruction of ESI before notice of a dispute.
Preservation Orders: State, Federal and Sedona Guidelines
The issue of preservation orders, and when they should be issued by judges, is complex. For that reason, I think it helps to consider the exact language used on this subject by the federal Pocket Guide, the state Chief Justices Guidelines, and the Sedona Conference commentary.
First, the Ninth Guideline for state court judges on preservation orders reads as follows:
A. When an order to preserve electronically-stored information is sought, a judge should require a threshold showing that the continuing existence and integrity of the information is threatened. Following such a showing, the judge should consider the following factors in determining the nature and scope of any order:
(1) The nature of the threat to the continuing existence or integrity of the electronically-stored information;
(2) The potential for irreparable harm to the requesting party absent a preservation order;
(3) The capability of the responding party to maintain the information sought in its original form, condition, and content; and
(4) The physical, technological, and financial burdens created by ordering preservation of the information.
B. When issuing an order to preserve electronically stored information, a judge should carefully tailor the order so that it is no broader than necessary to safeguard the information in question.
Contrast this with the advice provided to federal judges in the Pocket Guide:
In some cases, a preservation order that clearly defines the obligations of the producing party may minimize the risk that relevant evidence will be deliberately or inadvertently destroyed, may help ensure information is retrieved when it is most accessible (i.e., before it has been deleted or removed from active online data), and may protect the producing party from sanctions. . . .
Because a blanket preservation order may unduly interfere in a party’s day-to-day operations, may be prohibitively expensive, and may actually compound the information to be searched and produced, any order should be narrowly drawn to preserve relevant matter without imposing undue burdens. Early in the case, the court should discuss with the parties whether an order is needed and, if so, the scope, duration, method of data preservation, and other terms that will preserve relevant matter without imposing undue burdens.
A closing note about preservation orders: Courts are divided as to the standard for issuance of preservation orders. One line of cases holds that preservation orders are, in effect, case-management orders and are governed by Rule 16(b).28 A few cases have handled preservation orders as injunctions.29
28. See, e.g., Treppel, 2006 WL 278170, *7; Capricorn Power Co. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429, 433-34 (W.D. Pa. 2004); Pueblo of Laguna, 60 Fed. Cl. at 138 n.8.
29. See In re African-American Slave Descendants’ Litig., 2003 U.S. Dist. LEXIS 12016, *7-8 (N.D. Ill. July 15, 2003).
Finally, consider the language of the Sedona Conference on this issue, contained in Comment 5f. to The Sedona Principles Addressing Electronic Document Production, Second Edition (June, 2007):
In general, courts should not issue a preservation order over objection unless the party requesting such an order demonstrates its necessity, which may require an evidentiary hearing in some circumstances. Because all litigants are obligated to preserve relevant evidence in their possession, custody, or control, a party seeking a preservation order must first demonstrate a real danger of evidence destruction, the lack of any other available remedy, and that a preservation order is an appropriate exercise of the court’s discretion.
That said, jointly stipulated preservation orders may aid the discovery process by defining the specific contours of the parties’ preservation obligations. Before any preservation order is issued, the parties should meet and confer to discuss the scope and parameters of the preservation obligation. Whether agreed to or ordered over objection, preservation orders should be narrowly tailored to require preservation of documents and electronically stored information that are nonduplicative and relevant to the case, without unduly interfering with the normal functioning of the affected party’s operations and activities, including the operation of electronic information systems.
Ex parte preservation orders should rarely be entered. Such orders violate the principle that responding parties are responsible for preserving and producing their own electronically stored information. More generally, preservation orders rarely should be issued over objection, and only after a full and fair opportunity to present evidence and argument. This is particularly important when dealing with electronically stored information that may be transitory, not reasonably accessible, or not susceptible to reasonable preservation measures.
Usually, neither the party seeking a preservation order nor the court will have a thorough understanding of the other parties’ computer systems, the electronic data that is available, or the mechanisms in place to preserve that electronic data. For example, courts sometimes believe that backup tapes are inexpensive and that preservation of tapes is not burdensome. However, backup systems and technologies vary greatly. Without information about the specifics of the backup system in use, it is difficult to tell what steps are reasonable to meet the needs of the case.
The 2006 amendments to the Federal Rules carefully balance the need to discourage unnecessary, premature and/or overbroad preservation orders with the need to prevent the loss of information important to the litigation and to help parties who sought to memorialize agreements on the scope of their preservation obligations. As set forth in the Committee Note to Rule 26(f ), “the requirement that the parties discuss preservation does not imply that courts should routinely enter preservation orders. A preservation order entered over objections should be narrowly tailored. Ex parte preservation orders should issue only in exceptional circumstances.” Rule 26(b)(2)(B) was also amended to make it clear that either party may seek immediate relief in connection with preservation obligations.
The Sedona Principal commentaries on this issue are well reasoned and more detailed than either the state or federal Guides. I urge all judges, both state and federal, to supplement their Guides with the Sedona Principals, not only on the preservation order issue, but all issues.
All of the guides counsel against the imposition of preservation orders without a proper evidentiary showing of need. I think that the reasoning of In re African-American Slave Descendants’ Litig. is correct, and preservation orders are injunctions. For this reason, all of the due process protections that apply to injunctions and protect enjoined parties should also apply to preservation orders, including bond requirements. The Pocket Guide recognizes a split in case law on this issue, but does not decide it. Judges faced with this issue will be forced to decide. I urge the judiciary to err on the side of caution and treat preservation orders with the same care and caution afforded any injunctive relief.
SUPPLEMENTAL READING. Study the two discovery guidebooks (they are short) and note two observations from each guide that you found particularly interesting. Of course, study all of the linked web pages too. Do this on every module even if we do not provide a reminder like this.
EXERCISE: Search the web and find a few other reference guides available for judges on any subject. You do not have to study these. Just a speed-read review or skimming will suffice.
Discretionary Bonus Exercise: Find a photo of Judge Shira Scheindlin’s court room in Manhattan. What famous criminal trial took place there? Hint – there was no conviction.
Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!
Copyright Ralph Losey 2015