Electronic Discovery Rules, Proposed Rules, Commentary, and Debate

This section of www.kenwithers.com collects current information on the federal rulemaking process as it affects electronic discovery. Local rules from federal district courts and state court rules regarding electronic discovery are also listed here, as well as some model rules, model orders, and practice guidelines.

Recent additions

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has approved for publication and comment a package of proposed amendments to the Federal Rules of Civil Procedure, much of which is directly related to the discovery of electronically stored information. The full text of the proposed amendments, the Advisory Committee Notes, a summary, and a form to submit electronic comments are available at www.uscourts.gov/rules/newrules1.html. Comments will be accepted through February 15, 2005 by mail, e-mail, the electronic form provided, and at three pubic hearings to be held in January and February 2005 in San Francisco, Dallas, and Washington DC.

These proposed amendments have a lot of history behind them, including several drafts, dozens of comments from the public, and a two-day conference at Fordham University. For the duration of the public comment period, this background material will be available at www.kenwithers.com/rulemaking/civilrules.

State Rules, Local Federal Rules, Standing Orders, and Court-Issued Guidelines

In May 2004 the United States District Court for the District of Delaware posted its "Default Standard for Discovery of Electronic Documents." While not having the force of a local rule or standing order, the Standard is recommended procedure for all cases involving significant electronic discovery, absent an agreement of the parties or a court order otherwise.

In March 2004 standing orders issued in civil cases in the United States District Court for District of Kansas began to include the following language:

Electronic information falls within the definition of "documents" or "data compilations" in Fed. R. Civ. P. 26(a)(1)(B) and Fed. F. Civ. P. 34(a). Prior to the Fed. R. Civ. P. 26(f) conference, counsel should carefully investigate their clients' information management systems to determine whether discoverable information exists in electronic form. If such information exists, counsel should review the electronic discovery guidelines on the court's web site (http://www.ksd.uscourts.gov/attorney/electronicdiscoveryguidelines.pdf).

In October 2003 the United States District Court for the District of New Jersey approved a new Local Rule 26.1(d), which can be found on the District Court's web site in the newly revised complete local rules. LR 26.1(d) combines elements of both the Arkansas and Wyoming local rules, and resembles the Model Local Rule posted on this web site in May 2003.

In May 2003 the Mississippi Supreme Court adopted a new electronic discovery rule, similar to the rule currently in force in Texas state courts.

If you are aware of any rules or proposals in your jurisdiction affecting electronic discovery, please contact me at ken@kenwithers.com.

Miscellaneous Activities of Note

In August 2004 the American Bar Association approved amendments to the ABA Civil Discovery Standards. The amendments are far more detailed and comprehensive than the Standards adopted in 1999. They serve to inform judges struggling with case management issues, counsel on topics to cover in meetings with opposing counsel or pretrial conferences with the court, and local rulemaking bodies.

This year has seen considerable activity around e-disclosure in the United Kingdom. It seems a lifetime ago (four years, in fact) that I published my BILETA essay on the subject. It was received favorably at the time by the UK legal technology academy and with a collective yawn by UK practitioners, demonstrating that brazen self-promotion has its limits. Now there are two major efforts underway to address e-disclosure. The first is a report by the Commercial Litigators Forum posted earlier this year on their web site. A summary of the comments and a revised report are anticipated soon. The second is a draft Practice Direction on the Use of Technology in in Civil Proceedings undertaken by a Litigation Support Technology working committee of the Society for Computers and Law.

In November 2003 the Task Force on the Discovery Process in Ontario published its report and recommendations for reform, which include prominent mention of electronic discovery and the application of technology to the discovery process. The overarching recommendation is for the Ontario bar, judiciary, and court administration to develop a "Best Practices Manual" articulating standards for the conduct of discovery "in a collaborative and cost effective manner." Both the Executive Summary (in HTML format) and the entire 218-page Report (in PDF format) are available at http://www.ontariocourts.on.ca/discoveryreview/index.htm.

Model Case Management Orders

Order Concerning Electronic Discovery, from Prempro Products Liability MDL, 03-CV-1507 (E.D. Ark., November 17, 2003).
Model Order Regarding Preservation, prototype of Form 40.25 now found in the Manual for Complex Litigation (4th Edition).
Electronic Data Preservation Order Document Retention Questionnaire, from Initial Public Offering Securities Litigation, 21 MC 92 (S.D. N.Y., December 19, 2002).

If you have a model discovery management order on any aspect of electronic discovery you think would be useful to others, please contact me at ken@kenwithers.com.