Is it Possible to Get Through Electronic Discovery With Your Pocketbook Intact?

by:  Amy M. Gibson

The 2006 amendments to the Federal Rules of Civil Procedure focused on the discovery of “electronically stored information” (“ESI”) and emphasized early communication and cooperation in an effort to streamline information exchange and avoid costly unproductive disputes.  Despite these lofty goals, the courts have become bogged down with extensive and unproductive discovery disputes and escalating motion practice without ever being able to evaluate the merits of a case.  At the same time, clients are saddled with rising costs and fees relating to the production of ESI.  Is it possible for a litigant to make it through electronic discovery with his pocketbook intact?

The answer to this question may be “yes” if the parties and their respective counsel cooperate.   In July 2008, The Sedona Conference®, an organization of leading jurists, lawyers, experts, academics and others, published “The Sedona Conference® Cooperation Proclamation.”  The purpose of the Proclamation was to launch a coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a “just, speedy and inexpensive determination of every action.”  In drafting the Proclamation, The Sedona Conference® sought to promote open and forthright information sharing, dialogue, training and the development of practical tools to facilitate cooperative, collaborative and transparent discovery. 

While recognizing that lawyers have a duty to be zealous advocates for their clients, the Proclamation expects the attorneys to conduct discovery in a diligent and candid manner.  The Proclamation also noted that cooperation does not conflict with the advancement of a client’s interests- it actually promotes them.

The Proclamation suggests the following methods for accomplishing these goals:

1. Utilizing internal ESI discovery “point persons” to assist counsel in preparing requests and responses;
2. Exchanging information on relevant data sources, including those not being searched, and scheduling early disclosures on the topic of ESI;
3. Jointly developing automated search and retrieval methodologies to cull relevant information;
4. Promoting early identification of forms of production;
5. Developing case-long discovery budgets based on proportionality principles; and
6. Considering court-appointed experts, volunteer mediators or formal alternative dispute resolution programs to resolve discovery disputes.

Through January 2009, The Sedona Conference® Cooperation Proclamation has been endorsed by at least 44 federal judges, including 3 judges from the District Court of the Northern District of Illinois. 

The legal community is beginning to recognize the pitfalls associated with conducting electronic discovery under the 2006 amendments to the Federal Rules of Civil Procedure, and is devising solutions geared towards applying the rules in a practical and cost-effective manner.  If you would like further information on The Sedona Conference® Cooperation Proclamation or recent publications on this topic, or require assistance in navigating through a dispute which may involve electronic discovery, please contact us.  

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