Electronic Discovery Law

In two reports released yesterday, the Institute for the Advancement of the American Legal System at the University of Denver and the American College of Trial Lawyers, set forth rules and guidelines to be utilized by jurisdictions in the creation and implementation of pilot programs aimed at addressing the problems identified by the two groups in their Final Report on the Joint Project of the American College of Trial Lawyers Task Force and the Institute for the Advancement of the American Legal System (“Final Report”) earlier this year.  The Final Report, issued in March of this year, identified a myriad of problems within the nation’s civil justice system, including the ever growing expense of litigation, particularly with regard to discovery, and unnecessary delays in reaching resolution.

The first report, A Roadmap for Reform: Pilot Project Rules, sets forth twelve proposed rules “meant to apply the Principles set for the in the [Final Report],” including rules addressing the form and content of pleadings, the preservation of electronically stored information, and the imposition of sanctions for delay or the intentional or reckless failure to preserve evidence.

The second report, A Roadmap for Reform: Civil Caseflow Management Guidelines, provides guidelines and discussions of specific suggestions for applying those guidelines “to assist judges in effectively managing the flow of civil cases to ensure that all events in the life of a case are timely and meaningful.”  The guidelines were developed from the Principles identified in the groups’ Final Report and are intended to supplement the Pilot Project Rules.

One proposed rule, for example, requires the parties to meet and confer regarding the preservation of electronically stored information “promptly” after litigation is commenced and provides that a party may move for an order governing such preservation, in the absence of agreement, to be issued by the judge “as soon as possible.”

Both reports are available for download here.