Proposed national e-discovery standards and the Sedona principles: the Judicial Conference's proposed e-discovery rules generally reflect the Sedona Principles, but there is room for improvements in some respects.

• Author: Allman, Thomas Y.

THE U.S. Judicial Conference's Committee on Rules of Practice and Procedure has placed a number of carefully crafted e-discovery amendments to the Federal Rules of Civil Procedure before the bench and bar for evaluation and comment. These proposals, developed by the Civil Rules Advisory Committee, are the culmination of more than five years of work by the Advisory Committee and its Discovery Subcommittee. (1)

The proposed amendments would provide national standards to address the gaps and inadequacies identified in current practice involving discovery of what the Advisory Committee describes as "electronically stored information," sometimes called ESI. The proposals come against a backdrop of an increasing number of ad hoc local rules addressing similar issues, and they would trump those local rules to the extent they are inconsistent with the new proposals. (2) For example, the U.S. District Court for the District of Delaware recently adopted a "default standard" under which a "retention coordinator" must be appointed by litigants to "implement" procedures to preserve discoverable information. While the impulse to assure that preservation obligations are met is understandable, there are more than 90 federal judicial districts, and if each were to adopt specific and differing rules and procedures, the risk of confusion and unfair results would be obvious. (3)

It is not surprising that the Advisory Committee concluded that while there is "much to be said for these local rules and much has been learned from experience under them ... [a]doption of differing local rules by many district courts may freeze in place different practices and frustrate the ability to achieve the national standard the Civil Rules were intended to provide in the areas they address." It is clear from the public comments of committee members that specific examples from experienced practitioners would be of great help in evaluating the appropriate role of local rules and the merits of the proposals themselves. Interested parties are encouraged to contact Peter McCabe, Secretary of the Standing Committee, at Peter_McCabe@ao.uscourts.gov. (4)

THE PROPOSED AMENDMENTS

The proposed amendments start from the premise that a new category of discoverable information--"electronically stored information"--distinct from "documents," is a useful addition to the current rules. The Advisory Committee's report concluded that the term "'documents' cannot be stretched to accommodate all the differences between paper and electronically stored information in all the rules." While the existing case law has found ways, albeit somewhat awkwardly, to do exactly that in the majority of cases, this refreshing approach freed the committee to propose creative ways of addressing the unique discovery issues involving ESI.

There are now a series of excellent and thoughtful decisions, primarily at the district court level, of which the Zubulake line is the most prominent, (5) in which specific issues have been resolved by parties willing to invest the time and effort to seek court adjudication. However, the need for uniformity and the lack of consistent appellate court attention to these issues, which are rarely appealed, make the topic of e-discovery a particularly appropriate subject for rule making at this time. The Advisory Committee's report recognizes that case law is emerging, "but it is not consistent and discovery disputes are rarely the subject of appellate review."

All 10 of the resulting proposals are summarized in detail in the annotated appendix to this article, together with the key decisions applicable to the issues resolved. The following sections locus on the three proposals that will provoke the most comment and how they compare to the "best practices" advocated by the Sedona Principles, Best Practice Recommendations & Principles for Addressing Electronic Production, prepared by the Sedona Conference, a non-profit education and research institute and available at .

The Sedona Principles reflect an effort by experienced counsel, technical experts and records managers to grapple with practical issues of e-discovery and to develop consensus recommendations in the absence of definitive guidance from the courts. The principles were first issued for public comment in 2003 and placed in final form in January 2004. The key Advisory Committee proposals generally are consistent with the Sedona Principles, although there is some room for improvements.

1. Two-tiered Discovery Process for ESI

   1. Production Without Court Order

      Under the committee proposal, the limitations on the scope of discovery in Rule 26(b)(2) would be augmented by an explicit provision regarding inaccessible ESI ("A party need not provide discovery of electronically stored information that the party identifies as not reasonably accessible."). A court order, issued for "good cause," would be required for production. Under this two-tiered approach, a party seeking such information over objection would move to compel production, which could be ordered even if the ESI is found to be inaccessible. This is as under current practice. (6) One practical effect of this approach would be to confirm that inaccessible information need not be preserved at the outset of litigation, at least until a court orders to the contrary or unless the producing party has special knowledge indicating that specific inaccessible information is the only potential source of discoverable information.

      This is consistent with Sedona Principle 5, which requires "reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation" but does require that a party take "every conceivable step to preserve all potentially relevant data." As the Advisory Committee emphasizes in its proposed notes, in most instances, "a party acts reasonably by identifying and preserving reasonably accessible electronically stored information that is discoverable without a court order." The early discussion of potential preservation disputes required by amended Rule 26(f) is intended, in part, to address issues in dispute along these lines, with the failure to raise concerns amounting to a waiver of subsequent objections to the results of good faith failures to preserve and produce such information.

      A committee note appears to indicate that the committee sees "accessibility" as a proxy in the ESI context for the prohibition under Rule 26(c) against discovery that presents an "undue burden or expense." However, whether ESI sought is deemed to be "accessible" or not, production also could be limited by applying the more general balancing test of Rule 26(b)(2)(iii), which provides that the court shall limit discovery if it finds that "the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties resources, the important of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues."

      This...