Technology: The evolution of e-discovery orders

http://ow.ly/9YLw7

An article by James Hanft posted on the insidecounsel.com website.

This article discusses model orders in various jurisdictions, and looks at how they address eDiscovery.

The article states, "Early e-discovery rules mandated that the parties confer and agree on procedures. The problem was that court intervention was required to resolve roadblocks, leading to delays and uncertainty. The District of Delaware solved this dilemma by making the e-discovery rules a “default standard” that applies in the absence of agreement. The Federal Circuit and Texas Model Orders stepped back from this approach, appearing to tacitly acknowledge that there is no one-size-fits-all approach and instead made the rules discretionary by providing a model that may be adopted by the court.

The most prevalent forms of ESI for most businesses roughly come in three categories:
Shared business documents that typically reside on a central network or on individual computers, such as word processing, spreadsheets, presentations and occasionally separately saved emails, usually managed through a document management system
Emails and instant messages managed through a centralized email or IM server
All other types (e.g., accounting records, drawings, engineering documents, source code, graphics and pictures), typically generated and/or managed through a specialized program.

Recognizing the realities of modern business practices and that there are, at times, differences between what is requested by a litigant and what actually leads to useful admissible information, recent model orders treat email discovery separately and subject it to strict limitations. Litigants must now specifically propound email production requests, identify the custodian, search terms and time frame in the request, and are limited as to both the number of custodians and the number of search terms."

In addition, the author further points out, "One of the more interesting points of divergence is on the issue of proportionality and cost-shifting. The Federal Circuit model order stresses the shifting of costs for disproportionate ESI production requests and/or dilatory tactics. The Texas model order moved away from this and followed the more historical approach of leaving it within the purview of Fed. R. P. 37. This may be taken as an effort to control the cases involving non-practicing entities, where discovery burdens are typically one-sided, as opposed to competitor cases."