Court Programs Working Toward Normalcy in E-Discovery

http://ow.ly/6VCkl

Article published by the New York Law Journal, and appearing on law.com and the LTN webpage written by Ariana J. Tadler and Henry J. Kelston.

This article focuses on various ways that courts handle eDiscovery, and some of the local rules that are imposed by Federal District Courts, as well as some various State civil procedure rules.

The article states that since the revision of the Federal Rules of Civil Procedure in December 2006, "...27 states have incorporated some form of the federal e-discovery rules into their civil court procedures."

The article touches on some of the calls to revise the current Federal Rules to impose some artificial limitation on discovery requests.  The authors state, "These calls for fundamental rules changes are coming at a time when federal and state courts have instituted a broad range of programs and measures to reduce the cost and burden of electronic discovery through more effective use of the current rules. Some courts have issued recommended e-discovery protocols, while others have instituted mandatory procedures; some judicial approaches include court supervision from the outset, others only when the parties request the court's involvement. Notably, certain jurisdictions have also instituted special e-discovery pilot programs.

Two basic principles underlie all of these approaches. First, the key to controlling e-discovery costs and minimizing disputes is cooperation and transparency between the parties early in the discovery process. Second, the current rules, including the Federal Rules, provide a sound framework in which cooperation and transparency can and should be achieved. In fact, some courts are utilizing the current rules to move from a position of "encouraging" early information exchange to requiring it under threat of sanctions for failure to cooperate in discovery."

The article goes on to provide some detailed insight into pilot programs, and results they have produced thus far.  A further analysis of certain State court rules and various practices in District courts is also provided, as aforementioned.

P.S. As the article states in the concluding paragraph, "...courts around the country are recognizing that early attention to e-discovery issues, including a cooperative exchange of information between the parties, is key to reducing the costs and delays of e-discovery."