Federal Judicial Center Updates E-Discovery Pocket Guide

http://ow.ly/bRbiO

An article by Moncia Bay posted on law.com on the LTN webpage.

This article discusses the recently released second edition of the Federal Judicial Center's booklet, Managing Discovery of Electronic Information: A Pocket Guide for Judges, by Barbara Rothstein, Ronald Hedges, and Elizabeth Wiggins.

The new booklet addressed many issues related to eDiscovery, and Ms. Bay's article provides a link to download the booklet, as well as a means to request a paper copy of the information.  In addition, Ms. Bay's article also provides a link to a resource provided by the non-profit E-Discovery Institute, EDI's Judges' Guide to Cost-Effective E-Discovery, by Anne Kershaw and Joseph Howie.

The article discusses the "Pocket Guide" and states that it addressed the following issues:

• What matters should be discussed at a Federal Rule of Civil Procedures-mandated Rule 26(f) "meet and confer" conference, and what preparation and consultation should be required of the parties, as well as what disclosures are required.
• What matters should covered during Rule 16 conferences, and included in scheduling orders.
• How can judges limit the scope of ESI discovery so that it is proportional to the case, including what type of information is not reasonably accessible (and when good cause exists to allow discovery), and how can sanctions be used to promote cooperation and proportionality.
• Privilege and waiver issues such as inadvertant disclosure, and how to test assertions of privilege.
• Effective use of Federal Rule of Evidence 502 to reduce cost and delays.
• Litigation holds.
• Standards for finding spoliation and criteria for imposing sanctions.

The article states, "In the booklet's conclusion, the authors take to their bully pulpit to preach to their peers: "To facilitate efficient and cost-effective discovery, judges must require attorneys to take seriously their obligation to meet and confer under Rule 26(f) and to submit a meaningful discovery plan that addresses ESI issues likely to arise in the case," they declare. The authors further drill down, arguing that judges must encourage parties to narrowly target requests for ESI; evaluate proportionality; and impose limits on discovery, such as encouraging or ordering tiered or stayed discovery; sampling; or shifting of costs."

The article also quotes eDiscovery experts that provide some praise for the guide.  However, the article also states, "But there were a few dissonant notes: Michael Arkfeld, the principal of Arkfeld & Associates, was disappointed. "The publication was a lost opportunity and a surprise in light of the new technological advancements such as computer assisted review that affect proportionally and citations to a report and a model order that have been criticized by several legal commentators," said Arkfeld, also a member of LTN's board."