The E-Discovery Maze and Other Musings
I came across several interesting items this week so this post is going to be about a variety of things.
The Round Table Group, an expert services firm, approached me about writing an article for their newsletter. They wanted something different. I ended up writing about some actual scenarios from my practice. Although it was written for the Round Table Group’s clients, “Threading the E-Discovery Maze” is available publically.
IMS Services is another expert placement firm. Their latest newsletter, written by frequent blogger Robert Ambrogi, has an excellent compendium of e-discovery resources. He includes reading materials, blogs, and vendors.
Recently President Bush signed into law Rule 502, an addition to the rules of evidence. I found an excellent discussion of it at Law.com: “How Rule 502 Affects Lawyers and E-Discovery.”
My expert reports often contain drawings, diagrams, and screen shots. That means they get too large to email. There are a number of web sites that enable you to send large files securely through their website. Robin Good has a list of four such sites along with definitions and range of services. Typically, they work by uploading your material to their website and sending an email to the recipient with a link to download. Some allow you to store materials for a substantial period of time, making them great for collaboration or working away from the office. Obviously, if you have an ftp site (a technique for transferring files over the Internet), you do not need such services, but many small firms don't.
On July 1, a number of amendments to the rules of civil procedure went into effect in Ohio. According to the Ohio Supreme Court’s press release, key amendments include:
clarifying that issues related to electronically stored information are appropriate topics for resolution during pretrial conferences; clarifying that discovery of electronically stored information is permitted; amending to provide factors a judge should consider in determining sanctions when a party has destroyed potentially relevant electronically stored information; and specifying that a subpoena may be used to obtain electronically stored information from nonparties.
That reminded me that many states are making changes to their state version of the rules of civil procedure. Here is an updated list of the status of e-discovery rule changes in each state.
Ken Withers is Director of Judicial Education and Content for The Sedona Conference®, an Arizona-based non-profit law and policy think-tank which has been on the forefront of issues involving complex litigation, intellectual property and antitrust law. His thoughtful upcoming article for the San Diego Lawyer Magazine is titled “E-Discovery and the Combative Legal Culture: Finding A Way Out of Purgatory” and proposes a more collaborative relationship between opposing counsel. He gives examples of the explosion of e-discovery and discusses moving beyond the adversarial legal culture. He argues “cooperative discovery” is a means of controlling e-discovery costs. I’ve had some cases in which the opposing counsel cooperated with each other and some in which the definitely did not. And I can tell you from my perspective, cooperation is better.
I'd be interested to hear from attorneys what their experience is with cooperative discovery and whether they think it has a chance.
