Archive for April, 2011


Why E-Discovery Protocol?

Monday, April 18th, 2011

Too many Electronically Saved Information cases are left pending, without ever discovering the light of a solution in sight. The E-Discovery protocol is expected to facilitate the just, speedy, and inexpensive conduct of discovery involving Electronically Stored Information (ESI) in civil cases, and to promote, whenever possible, the resolution of disputes regarding the discovery of ESI without the intervention.

Lawyers engaged in civil litigation on smaller matters are not sure regarding the extent to which ESI must be preserved. They are worried about the costs associated with identifying, preserving, collecting, reviewing, and producing this information. This uncertainty, and a lack of understanding of the technical issues involved, forces many lawyers to choose one of the two extremes: over preservation to prevent sanctions or delegate preservation responsibilities to vendors or the clients themselves.

Without the benefit of large E-Discovery budgets, attorneys handling smaller matters may find themselves trapped. Engaging an outside expert to assess the client’s technology infrastructure and implement an appropriate E-Discovery protocol is prohibitively expensive. Clients may not be comfortable with the internal information being assessed by outside experts when their own technology personnel can handle the chunk of information. They may question the need to hire outside experts. These are, of course, reasonable arguments

Usually the time consuming collection of ESI may even go waste. Then there is the attorney review time which again takes a long time to process including the chunks of useless data that must have been collected. An E-Discovery protocol is intended to provide the parties with a comprehensive framework to address and resolve a wide range of ESI issues but it is not intended to be an inflexible checklist.

The Court expects parties to consider the nature of the claim, the amount in controversy, agreements of the parties, the relative ability of the parties to conduct discovery of ESI, and such other factors as may be relevant under the circumstances. Therefore not all aspects of this Protocol may be applicable or practical for a particular matter, and indeed, if the parties do not intend to seek discovery of ESI it may be entirely inapplicable to a particular case. The Court encourages the parties to use this Protocol in cases in which there will be discovery of ESI, and to resolve ESI issues informally and without supervision whenever possible.

Scope of E-Discovery Protocol

Friday, April 15th, 2011

E-Discovery has raised many important issues for litigators and their clients, including evidence integrity, preservation of meta data and its forensic value, recovery of electronic documents from backup tapes, the sheer volume of electronically stored information (ESI) and its impact on the scope of discovery and burden on the parties, and the suitable exchange of electronic
documents.

In December 2006, the US through the Federal Rules of Civil Procedure, introduced wide ranging measures to tackle these issues. Ever since the US courts have adopted these measures. The Federal Rules of Civil Procedure altered the federal litigation expanse by imposing certain strict rules on litigants. The litigants now have to discuss early in the case a range of matters relating to the discovery of their ESI. It also provides for an early discussion of the assertion of privilege claims. The scope of E-Discovery protocol has now changed from how it was earlier dealt with and not dealt with.

Before the new federal rules came into existence, litigants had to deal with issues related to ESI without a specified framework of rules specifying their disclosure and production obligations. Often, due to a lack of refinement of E-Discovery, the requesting parties’ counsel makes responding parties either to ignore their E-Discovery obligations or to run out the clock without providing any significant E-Discovery responses, information or ESI. The prohibitive cost involved in E-Discovery makes parties concerned failing to press the E-Discovery button.

The Federal Rules’ empowerment of federal courts to take charge of E-Discovery protocol matters, puts an end to the old status quo in ESI production. More federal courts (and state courts who rely on federal case law as instructive) are cautioning litigants to negotiate and reach early agreement on what ESI will be produced, when, and how.

The federal litigants who do not detail in advance about the what and how E-Discovery is going to be done and who will pay for it, face the prospect of having an unsympathetic court make those choices for them. This eventually leads to expensive consequences that could have been avoided. With many state courts now citing federal precedent, and with many states now adopting E-Discovery protocol rules similar to the new Federal Rules, this promises to be a real possibility in state court as well.