e-discoveryinfederalandstatecourtstheimpactof.doc

E-Discovery in Federal and State Courts: The Impact of Rulemaking – Past and Future I. The Civil Rule Amendments 3 II. E-Discovery Issues 10 Information Governance 10 Preservation 14 (2.1) The Duty to Preserve 14 (2.2) Preservation/Protective Orders 21 (2.3) Litigation Holds 23 (2.4) Presumptive Limitations 27 (2.5) Spoliation Sanctions 28 (2.6) Rule 37(e) 39 (3) Discovery 44 (3.1) Scope of Discovery 45 (3.2) Rule 26(f)/Rule 1/Cooperation 48 (3.3) Rule 16(b)/Case Management 53 (3.4) Rule 26(b)(2)(B)/Accessibility 55 (3.5) Rule 26(b)(2)(C)/Proportionality 58 (3.6) Search 63 (3.7) Intrusive Access 69 (3.8) Production Formats 71 (3.9) Privilege Waiver 74 (3.10) Costs Allocation/Taxation of Costs 77 (4) Discovery Sanctions 84 (5) Evidentiary Issues 89 (6) Counsel Responsibility 90 APPENDICES 97, 112 Since the 1990s, the practice of discovery – the seeking of evidence through various rule-based discovery devices - has increasingly included a focus on discoverable information in digital form, often described as “electronically stored information” or “ESI.” This Memorandum describes the unique features of this practice of “e-discovery” in Federal and State Courts as impacted by the 2006 E-Discovery Amendments to the Federal Rules (the “2006 Amendments”) and their state counterparts. We also cover the potential impact on the same topic of the “package” of proposed Federal Rule amendments approved for public comment by the Standing Committee in August, 2013, as well as certain states which have already undertaken some of the same policy choices in their discovery rules. As of this writing, thirty-two states have adopted e-discovery amendments as part of their civil rules inspired in whole or in part by the provisions of the 2006 Amendments. In so doing, these states seek t