Fortunately, my session was in the afternoon, which allowed me to attend a morning session entitled “Developments in Federal Practice: Discovery and Motions” which featured a magnificent panel of federal district judges from around Ohio. The panel was expertly moderated by Elizabeth “Missy” Wright from Thompson Hine LLP and Charles Faruki of Faruki Ireland & Cox P.L.L.

Judge John R. Adams of the Northern District of Ohio started things off by discussing in detail his Case Management Conference Scheduling Order. He lamented how few attorneys that come before him actually read this order. He also repeatedly emphasized that he always prefers to have parties before him that can fully discuss the case. He highly encourages as much dialog about the case as possible and always likes to have folks before him that have full settlement authority.

Judge Adams noted that e-discovery is becoming a much bigger issue in his court today although he commented that the vast majority of issues that arise are summarily resolved by the parties. He also recognized the Default Standard for Discovery of Electronically Stored Information that have been adopted by the Northern District of Ohio.

Judge Adams commented that he has found parties have generally been working together on e-discovery issues although some disagreements inevitably arise. he mentioned that he has appointed a forensic expert in at least one case to look at a hard drive.

Judge Adams stressed that he knows e-discovery issues are coming and they’re just on the horizon. He also stated that he hopes parties continue to work together in this area.

The other judges on the panel contributed some interesting perspectives on contemporary federal discovery and motion practice, but hardly any of them mentioned e-discovery as a primary concern. I wonder if this is because a) the issue never comes up in front of them; b) parties settle their own e-discovery controversies; or c) it’s simply a non-issue.

(The materials from the session are available on this page, but be aware that they are a 13MB PDF.)

As a result of the article, I found an e-discovery blog that I was not aware of before entitled “The eDiscovery Paradigm Shift” authored by Charles Skamser who is Vice President of Business Development of Trial Solutions, the parent company of ImageDepot. I’m adding Mr. Skamser’s blog to my blogroll, and enourage you to visit. He has an excellent post that links to the U.S. District Courts that have enacted special local rules addressing e-discovery.

Link to article.

While there wasn’t a lot of fanfare about the anniversay (well, I didn’t get invited to any birthday parties), there was a smattering of press releases and information that dribbled around the Web to mark the occasion.

At least two vendors marked the anniversay with surveys. I presume a lot of folks are tired of seeing the constant stream of e-discovery surveys, but they are one of the best ways to get a good grasp of how the litigating world is dealing with the burden of e-discovery. Since so much litigation is understandably conducted behind closed, confidential doors, general surveys help us follow the evolution of e-discovery. (In fact, I’ve now added an “E-Discovery Surveys” category to this blog.)

First, Fortiva posted the results of a survey conducted for them by iTracks with the alluring title “One in Five Businesses Have Settled a Lawsuit to Avoid the Cost of Recovering and Searching Through Email.” The survey was conducted between November 7-23, 2007 among 90 professionals “directly involved with legal discovery in North America.” Several interesting bullet points come out of the survey:

• 47% of respondents do not agree that their legal team can effectively review relevant e-mail in the time alotted by the FRCP before the “meet and confer” session
• 51% of the respondents have either implemented, or are planning to implement, technology that allows them to easily search and review e-mail
• 69% of the respondents report that they face at lesat one litigation hold each year, but only 37% have a formal litigation hold process in place
• 37% of the respondents conduct more than 21 searches through old e-mail each year to gather information for legal reasons
• 35% of the respondents are NOT confident that e-mails are fully reviewed to ensure attorney-client privilege is not waived before being sent to opposing counsel
• 51% of the respondents claimed the average cost of litigation (excluding settlement costs) was over $200,000, with 8% putting the average cost over $1 million

Next, LexisNexis reported the results of their Corporate Counsel Survey which was conducted between October 29-30, 2007 at the 2007 Association of Corporate Counsel Annual Meeting. “Seventy-six verified corporate counsel attorneys from diverse geographic and industry backgrounds were randomly selected and participated in the 14 question online survey.” Notable bullet points:

• Respondents reported that their biggest challenges in complying with the FRCP for electronically stored information involved internal processes and systems:
  • Communicating with IT departments (27%)
  • Finding budget to put systems and tools into place (25%)
  • Getting buy-in from upper management on the importance of litigation preparedness (21%)
  • Finding e-discovery staff with a good mix of IT and legal expertise (9%)
• 70% of the respondents incorrectly believe that the rules require them to product documents in their “native file” format
• 76% of the respondents report that the new rules have NOT helped trim costs nor reduce the scope of discovery work, and 73% of the respondents said their company has seen an increase of up to 20% in discovery workload as a result of the new rules
• 82% of the respondents report their company has a document retention policy; 75% report they have implemented a formal legal holds process; and more than 40% report they have conduted employee training for compliance

E-discovery vendor Kroll Ontrack took a bit of a different approach by offering a look at “The Most Significant Electronic Discovery Cases Under The New Federal Rules of Civil Procedure.” The press release reports that approximately 105 e-discovery opinions have been reported since December 1, 2006 and they break down as follows:

• 25% of cases addressed discovery requests and motions to compel
• 24% of cases addressed spoliation/sanction
• 23% of cases addressed issues involving the form of production
• 9% of cases addressed preservation/litigation holds
• 7% of cases addressed attorney-client privilege and waiver
• 6% of cases addressed production fees
• 6% of cases addressed admissibility of electronic evidence

The Kroll Ontrack press release also boldly lists the top 5 most significant e-discovery cases from 2007.

The last press release is mostly a puffery piece from Mimosa Systems, although the Byte and Switch headline read “Mimosa Observes FRCP Anniversary” (and also observed by the Information Governance Engagement Area blog).  The release discusses how many companies are now realizing the need for e-mail archiving applications (such as that from Mimosa Systems) which “provides important benefits for companies required to satisfy data governance with respect to FRCP.”

And lastly, this is not a press release, but the FRCP itself is celebrating their e-discovery amendment birthday by doing a little spring cleaning on the language of the rules. The Rules Advisory Committee has apparently been busy over the last few years working on a comprehensive “style” revision of the Civil Rules and the fruits of their labor went into effect on December 1, 2007. You can read full reports about the new amendments at http://www.uscourts.gov/rules/congress0407.htm.

The Excerpt from the Judicial Conference Report repeatedly states that the revisions focus on “style” revisions for the FRCP (as well as other Rules) to better “clarify and simplify them without changing their substantive meaning.” To accomplish this, the advisory committee

• used formating changes to achieve clearer presentation;
• reduced the use of inconsistent and ambiguous words;
• minimized the use of redundant words and terms;
• and removed words and terms that were outdated.

Examples of these changes included breaking down blocky paragraphs to make them easier to read. Ambiguous words like “shall” were replaced with words like “must,” “may,” or “should” where necessary to better convey the meaning of the rule. Changes were made to numbering schemes although all rule numbers stayed the same – an example is that FRCP 26(f)(3) is now FRCP 26(f)(3)(C) which truly makes better sense when you see the rule in toto.

The study was conducted in March & April of 2007 and the results are based on 101 completed surveys – 42% corporate counsel/legal department staff and 58% law firm attorneys/litigation support staff.

Generally, the results mirror what other surveys have found – that a large number of corporations are unprepared to respond to an electronic discovery request. In the Océ Business Services survey, only 10% of in-house counsel consider their company very well prepared to comply with a discovery request for electronic and paper documents, and 55% consider their company NOT well-prepared.

The survey further reports that both corporate and law firm attorneys agreed on five major factors that are important to effectively comply with an e-discovery request:

1. Having a functioning e-discovery response strategy in place
2. Having a well-planned and complete records management program in place
3. Knowing the IT structure of your company/client
4. Consistency in implementing discovery practices
5. Having a legal hold system in place

I enjoy the sections of the survey that examine scenarios such as “The ‘We are unaccountably unprepared’ effect” and “The ‘We agree we must be more committed’ deflection.” Here are some of the more pungent numbers from the survey:

• 33% of corporate counsel frankly state they do NOT understand the FRCP amendments very well
• 50% of large enterprises do not have a fully implemented program to manage records
• 92% of the surveyed companies with record programs are vulnerable when it comes to ESI and preparedness for e-discovery

Link to survey