Updated List: Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues
At least 38 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information. In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery. Here is current collection of United States District Court local rules, standards, guidelines and judge-mandated forms and protocols that specifically address e-discovery issues, with links to the relevant materials.
Eastern and Western Districts of Arkansas
Local Rule 26.1 Outline for Fed. R. Civ. P. 26(f) Report
District of Alaska
Local Form 26(f): Scheduling and Planning Conference Report (see item 4(B))
Local Rule 16.1 Pre-Trial Procedures (requiring use of Local Form 26(f) or one substantially similar)
District of Arizona
Order Setting Rule 16 Case Management Conference (Magistrate Judge Michelle H. Burns)
Order Setting Rule 16 Case Management Conference (District Judge David G. Campbell)
Order Setting Rule 16 Case Management Conference (Magistrate Judge David K. Duncan)
Order Setting Rule 16 Case Management Conference (District Judge Mary H. Murguia)
Northern District of California
Standing Order For All Judges Of The Northern District Of California: Contents Of Joint Case Management Statement (see item 6)
Local Rule 16-9 Case Management Statement and Proposed Order (requiring parties' Joint Case Management Statement to include all topics listed in Standing Order)
District of Colorado
Appendix F: Instructions for Preparation of Scheduling Order and Form Scheduling Order
District of Connecticut
Local Rules 16(b), 26, 37 and Form 26(F)
Managing Discovery of Electronic Information: A Pocket Guide for Judges
By Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins
Federal Judicial Center (2007)
This “Pocket Guide” identifies problems that recur during the course of electronic discovery, and presents management tools that federal judges may use for responding to them. The 26-page publication may be downloaded from the Federal Judicial Center’s website, free of charge.
Continue Reading...List of States Actively Considering the Adoption of Special E-Discovery Court Rules
A number of states are considering whether to adopt special court rules addressing the discovery of electronically stored information. Here is a current list of those states that have published proposed rules amendments for public comment, with links to the relevant materials.
Alaska
Currently seeking public comment on proposed rules; deadline is Friday, 2/29/2008.
Request for Comments on Proposed Rule Changes
California
Currently seeking public comment on proposed rules; deadline is Friday, 1/25/2008.
Invitation to Comment
Iowa
Period for public comment on proposed amendments closed on 5/1/2007.
Request for Public Comment Regarding Proposed Amendments to the Iowa Rules of Civil Procedure
Current Listing of States That Have Enacted E-Discovery Rules
More and more states are adopting statutes and court rules addressing the discovery of electronically stored information. Here is a current list with links to the relevant provisions.
Arizona
Amendments to Rules of Civil Procedure 16, 26, 26.1, 33, 34, 37 and 45
Effective January 1, 2008
Connecticut
Connecticut Practice Book, Superior Court – Procedures in Civil Matters
Sec. 13-9. Requests for Production, Inspection and Examination; In General (see subsection (d), at p. 192 of 259-page .pdf document)
Effective January 1, 2006
Idaho
Idaho R. Civ. P. 34
Effective July 1, 2006
Uniform Rules Relating to the Discovery of Electronically Stored Information Approved and Recommended for Enactment
The National Conference of Commissioners on Uniform State Laws has approved its Uniform Rules Relating to the Discovery of Electronically Stored Information and recommended them for enactment in all the states.
The NCCUSL describes the Uniform Rules as follows:
The Uniform Rules Relating to the Discovery of Electronically Stored Information provides states with up-to-date rules for the discovery of electronic documents in civil cases. The Uniform Rules provide procedures for parties in a civil case to jointly follow relating to a number of issues, including the preservation of the electronic information; the form in which the information will be produced; and the period of time in which the information must be produced. The Uniform Rules limit the sanctions which may be imposed on a party for failure to provide electronic information that has been lost as the result of routine operation of an electronic information system, only if the system was operated in good faith. The Uniform Rules address the unique difficulties in accessing some electronic information by providing certain restrictions on its discovery. For instance, a party may object to discovery of electronically stored information on the grounds that the information is not reasonably accessible because of undue burden or expense. However, the court may order discovery of such information if it is shown that the likely benefit of the proposed discovery outweighs the likely burden or expense, and may allocate between the parties the expense of conducting the discovery.
A version of the Uniform Rules without comments is available here.
Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information
In August 2006, the Conference of Chief Justices approved the Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information as a reference tool for state trial court judges faced by a dispute over e-discovery.
These Guidelines are intended to help in identifying the issues and determining the decision- making factors to be applied in the circumstances presented in a specific case. They should not be treated as model rules or universally applicable standards. They have been crafted only to offer guidance to those faced with addressing the practical problems that the digital age has created. The Conference of Chief Justices recognizes that the Guidelines will become part of the continuing dialogue concerning how best to ensure the fair, efficient, and effective administration of justice as technology changes. They should be considered along with the other resources such as the newly revised provisions on discovery in the Federal Rules of Civil Procedure and the most recent edition of the American Bar Association Standards Relating to Discovery. Although the Guidelines acknowledge the benefits of uniformity and are largely consistent with the revised Federal Rules, they also recognize that the final determination of what procedural and evidentiary rules should govern questions in state court proceedings (such as when inadvertent disclosures waive the attorney-client privilege) are the responsibility of each state, based upon its legal tradition, experience, and process.
The Sedona Conference® Publishes The Sedona Principles, Second Edition, Addressing Electronic Discovery
SEDONA, AZ – The Sedona Conference®, the nation’s premier nonpartisan law and policy think tank, has announced publication of The Sedona Principles, Second Edition, Best Practices Recommendations and Principles for Addressing Electronic Document Production. Building on the success of first edition of The Sedona Principles, which appeared in January 2004, the second edition has been eagerly anticipated by lawyers and judges across the country looking for guidance in the fast-paced world of electronic discovery.
The Sedona Principles, Second Edition, may be downloaded here free of charge.
Jonathan Redgrave, chairperson of the Steering Committee of The Sedona Conference® Working Group 1, which drafted both editions of The Sedona Principles, said “the second edition provides helpful and timely guidance for the issues and circumstances that the amended civil rules, by their nature, cannot address.” He added, “we are very grateful for the contributions and thoughts of the literally hundreds of members of the working group that make this a consensus document reflecting views from a wide array of interests and specialties.”
Richard G. Braman, Executive Director of The Sedona Conference®, said that publication of the second edition “represents a new milestone in our efforts. It reflects the fact that our Working Groups produce ‘living documents’ that are open to substantive revision as developments in our society and laws may require. This evolution is in the grand tradition of the common law and also the mission of The Sedona Conference® to move the law forward in a reasoned and just way.”
Continue Reading...The Sedona Guidelines, September 2005
The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age is now available for download. This document, the second published by The Sedona Conference Working Group Series, addresses "questions related to the management of electronic information in organizations as a result of business, statutory, regulatory and legal needs. The subject of information management and record retention is of critical importance in the digital age and the subject of many treatises and publications, yet the members and participants of the Working Group believed there was a need to distill existing thoughts and, in doing so, reach across the boundaries of legal compliance, records management and information technology." To view and download the complete report, click here.
2005 Socha-Gelbmann Electronic Discovery Survey
The 2005 Socha-Gelbmann Electronic Discovery Survey Report has been released. The 2005 Survey examines the state of electronic discovery in 2004, through direct interviews and an online surveys of 69 consumers and providers of electronic discovery services, as well as website data from more than 200 organizations in the electronic discovery niche. It also compares this year's results with results from the preceding two years, and makes projections for 2005 through 2007. For more information about the survey, or to purchase, click here.
Electronic Discovery Sanctions in the Twenty-First Century
Judge Scheindlin, United States District Court Judge for the Southern District of New York, has co-authored an article that surveys decisions concerning e-discovery sanctions issued since January 1, 2000. The article is meant to provide guidance for e-discovery reform by examining what state and federal courts have considered to be sanctionable conduct and the sanctions that have been imposed. Full text of the article can be found here.
State-Specific E-Discovery Rules
Several states, including Kansas, Delaware, Mississippi, and Texas have amended their Civil Rules to address electronic documents in discovery. New Jersey, Wyoming, and Arkansas have also adopted local rules.
The Sedona Conference
The Sedona Conference(SM) is a nonprofit 501(c)(3) research and educational institute, dedicated to the advanced study of law and policy in the areas of antitrust, intellectual property, and complex litigation. Since its founding in 1997, it has developed an international reputation as a balanced and forward-looking law and policy think tank that has and will continue to provide constructive contributions to the reasoned and just development of law and policy. The Sedona Guidelines and The Sedona Principles have come to have been known as the preeminent thought-leadership pieces in the field.
Ken Withers
Ken Withers is a senior judicial education attorney with the Federal Judicial Center in Washington, D.C., where he is responsible for developing educational programs for federal judges and Court-employed attorneys. These programs include electronic discovery, technology in the criminal justice system, and advanced uses of technology in the administration of justice. Ken is also heavily involved in the federal rules amendment process.
Lawyers for Civil Justice
Created by defense trial lawyers and corporate counsel, Lawyers for Civil Justice (LCJ) is a national coalition supporting excellence, fairness and improvements within the civil justice system. It supports activities at both the state and national level designed to achieve reforms, which will ensure balance in the civil justice system. Greater predictability in damage awards, streamlining the discovery process, and improving the management of litigation and scarce judicial resources are all long range goals of LCJ.
Continue Reading...Socha Consulting LLC
As an e-discovery special master and expert witness, George Socha tracks e-discovery happenings, articles, and books and provides technology vendor information through his website, sochaconsulting.com. George is also a researcher and frequent speaker on the subject of electronic discovery.
U.S. Courts Website
The U.S. Courts website is a great place view postings and make comments to the proposed amendments of the rules to the Federal Rules of Civil Procedure regarding electronic discovery.
Defense Research Institute's E-Discovery Committee
The Defense Research Institute (DRI) is the national organization of defense trial lawyers and corporate counsel. DRI's E-Discovery Committee keeps members informed on the latest developments in e-discovery law through their website and annual e-discovery CLE Seminar.
Continue Reading...California Civil Discovery Law
Commissioner Richard E. Best, retired from the San Francisco Superior Court in 2003 after 29 years of service, and continues to promote the use of technology in discovery, as well as serve as a private discovery referee. His website, California Civil Discovery Law, is a repository of continuing education materials, discovery resources, case law and e-discovery updates.
