Domestic Diversions

The February 6, 2004 ABA Journal e-Report carries an update on efforts to create standards on electronic discovery.

Jason Krause writes (excerpt):
The Litigation Section’s Task Force on Electronic Discovery is taking comments on its draft amendments to the discovery standards. “The one big problem is that most discovery happens under the radar screen,” says Gregory Joseph, an attorney in New York and co-chair of the task force. “There are maybe a dozen decisions on the subject, not all of equal quality. These rules are intended to help level the playing field for lawyers who may not have experience in e-discovery.”

The draft was designed to address three primary issues: allocating the cost of electronic discovery, altering or destroying evidence, and handling privileged information. Standards exist for such issues in the paper world, but there are new issues associated with electronic evidence.
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Joseph acknowledges that it may be impossible to codify the best way to handle electronic discovery, but argues that the standards are needed to help clarify a difficult issue. “This is obviously an area of law that’s moving faster than the rules can be written. Even moving at light speed, the rule-making process takes two years,” Joseph says. “I think the point of what the ABA is doing is to issue a set of best-practice guidelines that will evolve over time.”

There are five proposed rules. The first concerns preserving and producing electronic documents, and includes a checklist of all the places electronic documents can be found. It also has an expanded list of factors that courts should consider when deciding how to allocate the costs of discovery. They include the cost of producing the documents compared to the amount in controversy, the need for the discovery, the importance of the issues, and the resources of each party compared to the costs of production.

The second rule provides that in appropriate cases, some or all of the discovery materials should be converted to electronic format. The third concerns the need to confer about electronic discovery at the initial discovery conference.

The fourth rule deals with how to protect attorney-client privilege and attorney work product. Among other things, it suggests parties stipulate to the appointment of a technology consultant as an agent of the court to review documents for privileged data. Disclosure of such documents to the consultant or other parties would not constitute a waiver.

The final rule recognizes that new storage technologies may not be electronic and says the discovery standards still should be consulted when data is stored in a new form.

Joseph says cost-sharing was considered the least important issue because several court cases have addressed it, creating a solid body of common law from which to draw guidelines.

The most notable case is Zubulake v. UBS Warburg, 02 Civ. 1243 (S. Dist. of N.Y., May 13, 2003), in which the judge has published four separate rulings on the subject. Judge Shira A. Scheindlin modified a test that has often been used to determine how to split the cost of producing electronic files between litigants. She held that courts must consider factors such as the likelihood of discovering critical information and the cost of the document production compared to the amount in controversy and compared to the resources available to each party.