Title: One Year After the Federal E-Discovery Rule Amendments
Abstract: Trek Captain Jean-Luc Picard would be proud. Courts, counsel, and clients now boldly go where no man has gone before in exploring the new frontier of electronically stored information (ESI). Since the December 2006 amendments to the Federal Rules of Civil Procedure, e-discovery motion practice is on the rise in litigation generally and environmental litigation specifically, as reflected by an increase in reported decisions and anecdotal reports from many federal and state judges. In response, a growing number of federal and state courts have implemented protocols and guidelines for addressing ESI issues. The protocols tread a fine line between observing the prime directive of the Federal Rules amendments and corresponding state rules, on the one hand, and the urgent need to supply practical guidance to judges, attorneys, and litigants at the local level, on the other. The growing number of ethics opinions involving review of inadvertently produced metadata and the ultimate admissibility of ESI is also helping to further refine the contours of discovery practice under the amended Rules. At a recent e-discovery conference, a federal magistrate noted that United States District Court judges and magistrate judges should not be asked to be e-discovery day care providers to litigants. And who can blame them? They are supposed to provide guidance and make decisions where the parties truly cannot resolve difficult legal and factual e-discovery issues. They loath providing parental supervision where parties fail to communicate and collaborate to resolve these issues without court intervention. This is not a new development in discovery, but Rule 26(f) requirement to specifically meet and confer regarding ESI arguably adds a new layer of time, complexity, and cost to this process. The requirement has upped the ante for computer-literate practitioners, and counsel on both sides of the bar have expressed a need for more concrete guidance. In response, more than thirty federal district courts have adopted local ESI discovery rules, protocols, or guidelines. See K&L Gates Electronic Discovery Law, Updated List: Local Rules of United States District Courts Addressing E-Discovery Issues, www.ediscoverylaw.com/articles/resources/. In a legal
Publication Year: 2016
Publication Date: 2016-01-01
Language: en
Type: article
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