Broadly considered, there are a wide variety of sources of ediscovery law. That’s because ediscovery law isn’t confined to the statutes, regulations, and codes that touch on the topic of electronically stored information in litigation. Instead, there exists a bulk of advisory and professional material designed to enlighten and guide judges, lawyers, and litigants with respect to their ediscovery decisions.
In this article, we’ll first briefly discuss the difference between state and federal courts, and why it matters. Second, we’ll introduce you to the difference between primary law and advisory guidelines. We’ll walk you through some of the federal and state court rules that govern ediscovery practice in their respective jurisdictions, along with a few of the most influential collections of advisory guidelines in the United States.
Finally, we’ll analyze the importance of lawyers’ professional codes of conduct, and how they do, or do not, address the specific issue of technological competence.
Difference between state and federal courts
In the United States, there exist both state and federal courts. Each branch of the judicial system has various levels of courts as well, with both trial and appellate courts hearing cases. While most cases are heard by state courts, federal courts hear cases involving:
– Cases in which the United States itself is a party (for example, if a person, company, or state is suing the federal government or if the federal government sues another party)
– The case involves an infringement of the United States Constitution, an international treaty, or federal law
– Bankruptcy, copyright, maritime, and patent matters
– A criminal charge involving the United States Code (which is federal legislation)
– An action involving citizens or companies headquartered in different states
– An action involving citizens or companies headquartered in foreign countries
The distinction between state and federal courts is an important one for the purpose of ediscovery law. Your case’s venue will determine whether the Federal Rules of Civil Procedure (FRCP) apply or if state rules regarding ediscovery must be complied with.
While it’s difficult to generalize, many cases involving large amounts of ediscovery do wind up in the federal courts because of the frequency with which they involve multi-jurisdictional corporate parties, or even internationally involved parties.
Difference between binding law and advisory guidelines
There are important differences between legislatively or judicially enacted rules of court and the advisory guidelines written by various committees, conferences, and organizations. The former are considered “primary law.” In other words, they form part of the law of the state or country (depending on the level of government or court that enacted them) and must be followed.
The latter does not carry the force of law. In many cases, they can be ignored by judges, juries, and litigants during a lawsuit. This comes with an important caveat, however. Many of these advisory guidelines, like the Sedona Principles, are so influential that they have become an integral part of how judges decide disputes.
This isn’t surprising, given how knowledgeable and esteemed the working groups and committees that make up some of these organizations are.
Federal Court Rules
Civil litigation that takes place in federal court is governed primarily by the Federal Rules of Civil Procedure, a collection of rules that aims to bring some order to the chaos of uncontrolled litigation.
Federal Rules of Civil Procedure:
The Federal Rules of Civil Procedure set out a number of rules that are highly relevant to ediscovery law. They pertain to any federally litigated dispute. We’ll go through a few of the especially pertinent ones here.
“These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”
More of a statement of principle than a hard and fast rule, Rule 1 makes clear that the rest of the Rules of the FRCP are meant to secure efficiency in the civil litigation process. One of the perennial complaints about civil ediscovery law is that it is extraordinarily cumbersome to comply with, especially for less well-heeled litigants. Costs of ediscovery can quickly mount if lawyers on either side are intent on using discovery as a cudgel to force a settlement.
We haven’t set out this rule in full because it’s quite lengthy. However, it suffices to say that this Rule allows judges to effectively control the pace at which parties will provide ediscovery to one another. (It also allows for other case management techniques but those are beyond the scope of this paper.)
In particular, Rule 16(b)(3)(B)(iii) provides that a scheduling order authorized under Rule 16 may incorporate timelines for “disclosure, discovery, or preservation of electronically stored information.”
Again, as with Rule 16, Rule 26 is quite lengthy and space does not permit us to reproduce it in full here. Rule 26 deals generally with disclosure and discovery. Importantly, Rule 26(b)(1) sets out a rule of proportionality. It reads as follows:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
This Rule largely speaks for itself. Introduced in a 2015 amendment specifically aimed at addressing flaws and abuses within the ediscovery system, it attempts to bring efficiency to ediscovery by raising proportionality to a guiding principle.
This Rule sets out the procedure for requests, and responses to those requests, regarding (among other things) electronically stored information (ESI). Rule 34(a)(1)(A) holds that parties may request from each other production of or permission to inspect:
any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form…
Importantly, this rule specifies that the information is to be provided in “a reasonably usable form.”
While the full contents of the Federal Rules of Civil Procedure as they apply to ediscovery are outside the scope of this article, one can quickly see how much of an impact the rules of court have on the ediscovery process in litigation.
The rules promulgated by state courts can differ subtly or distinctly from the rules set out in the Federal Rules of Civil Procedure. We’ve included a handful of examples showing that, while state-level ediscovery rules tend to mirror the rules present in the FRCP, amendments to legislation and differences in local needs can lead to some differences between states in certain areas.
New York has specific rules for how it deals with the electronically stored information (ESI) of non-parties to the dispute. In APPENDIX A. GUIDELINES FOR DISCOVERY OF ELECTRONICALLY STORED INFORMATION (“ESI”) FROM NONPARTIES of the Uniform Civil Rules For The Supreme Court And The County Court, the court has set out a number of principles and procedures to guide the treatment of nonparties possessing ESI.
Interestingly, it also includes a proportionality rule, although the Rule reads slightly differently than it does in the FRCP:
III. A party seeking ESI discovery from a nonparty should reasonably limit its discovery requests, taking into consideration the following proportionality factors:
1. The importance of the issues at stake in the litigation;
2. The amount in controversy;
3. The expected importance of the requested ESI;
4. The availability of the ESI from another source, including a party;
5. The “accessibility” of the ESI, as defined in applicable case law; and
6. The expected burden and cost to the nonparty.
How the court would weigh these factors differently in the case of a nonparty compared to a plaintiff or defendant is not entirely clear from the rules themselves.
The California Electronic Discovery Act of 2009 harmonized much of California’s Code of Civil Procedure with the Federal Rules of Civil Procedure. It even included a wide-ranging definition of what constitutes electronically stored information in CCP 2016.020(d-e).
Bluntly, lawyers and litigants in California should not face a materially different environment with respect to ediscovery regardless of whether they find themselves in federal or state court.
In 2012, Florida amended several rules relating to the discovery of ESI in state-level litigation. The amendments affected case management conferences, case management reports and conferences in “complex litigation,” limitations on discovery, the options to produce business records in response to interrogatories, document production, discovery sanctions, and subpoenas for documents.
Since the amendments were generally modeled after the Federal Rules of Civil Procedure (as they then existed), the subsequent 2015 amendments to the FRCP may have undone some of the harmonization that was intended by Florida’s 2012 amendments.
The need for advisory guidelines in ediscovery is significant. As pointed out in the Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information (which are discussed in more depth below), rulings on ediscovery motions and disputes are rarely subject to appellate review. As a result, they do not often get the sort of in-depth judicial analysis and treatment that other procedural matters get by way of the appellate courts.
Luckily for litigants and practitioners in the field, there is no shortage of distinguished, qualified, and diligent advisory groups publishing detailed recommendations for trial judges everywhere.
Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information
The Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information are the creation of a Working Group of the Conference of Chief Justices from 2006. It describes a series of best practices for trial judges on state courts hearing cases involving extensive ediscovery.
Although the Guidelines are now over 14 years old, they contain excellent advice and were, for a time, frequently referenced in judicial decisions regarding ediscovery.
Advisory Committee Notes (FRCP)
The Advisory Committee on Rules of Civil Procedure meets periodically to discuss potential changes to the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and related Rules. The Committee is august, being made up of sitting appellate and trial judges and justices, distinguished counsel, and academics.
Their notes appear under the Federal Rules and provide highly useful guidance with respect to their intent. Of course, these notes don’t make up part of the law in the way that the rules themselves do, but they’re an authoritative source for judges looking for guideposts on how to apply the sometimes ambiguous rules.
The Sedona Principles, now in their third edition, represent some of the most important non-binding guidelines on ediscovery law in the United States today. Published by the Electronic Document Retention and Production Working Group of The Sedona Conference, The Sedona Principles contain “best practice recommendations and principles for addressing ESI issues in disputes—whether in federal or state court, and whether during or before the commencement of litigation.”
The Sedona Principles are highly authoritative. They’ve been cited in numerous high-profile cases, including the famous Zubalake v. UBS Warburg quintet of ediscovery decisions, and are frequently the subject of positive comment by judges, committees, and legislators.
The third edition of The Sedona Principles leans heavily on the twin themes of cooperation in ediscovery and proportionality in ediscovery. It also emphasizes the principle of “First, do no harm,” by which it means that it should realize its mission of moving the law forward without making changes to one part of the ediscovery ecosystem that unnecessarily damage other parts of that same system.
ABA’s Civil Discovery Standards
The American Bar Association’s Civil Discovery Standards, adopted in 2004 have become a little bit dated. 16 years’ passage will tend to do that when technology moves as quickly as it does. But the fundamental principles it sets out remain as sound today as they were when they were first written.
The ABA’s Civil Discovery Standards cover everything from discovery conferences to judicial sanctions of bad conduct on the part of lawyers and litigants. There is an entire section devoted to technology and the issues that can arise when cases involve electronically stored information (or, at least, the issues that could arise in 2004).
Electronic Discovery Reference Model
The Electronic Discovery Reference Model, or the EDRM for short, represents a conceptual view of the iterative process that is ediscovery. The EDRM Model is widely used, not just by lawyers and judges to better understand the conceptual basis for electronic discovery, but by businesses attempting to build a cohesive and stable structure for their ongoing information governance efforts.
Lawyer’s Ethical Guidelines For eDiscovery Competence
The rules about lawyers representing clients in cases involving considerable amounts of ediscovery largely arise from their duty of competence. The American Bar Association and every State Bar publish a rule that prohibits a lawyer from representing someone whom he or she is not competent to represent.
The State Bar codes often go further, however, and specifically address technological competence in the context of legal representation.
State Codes of Conduct for Lawyers:
While the Rules of Professional Conduct promulgated by the New York State Unified Court System do not specifically refer to ediscovery, they do contain a competence requirement. Rule 1.1 of the Rules states:
(a) A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
(b) A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.
This arguably encompasses a situation where a lawyer agrees to take on a case involving ediscovery without knowing how to properly handle one.
The California State Bar recently proposed an amendment to the California Rules of Professional Conduct. The amendment would include “a duty to keep abreast of the changes in the law and law practice, including the benefits and risks associated with relevant technology” for all lawyers.
Now, it’s arguable whether that requirement would constitute a truly new duty since it’s difficult to imagine how a lawyer could be serving their client properly in a case involving ediscovery without understanding and using appropriate technology.
Nevertheless, the proposed amendment serves as a reminder that Bar Associations serve as important sources of ediscovery regulation and guidance.
In the Rules Regulating the Florida Bar Chapter 4: Rules of Professional Conduct, the Florida Bar includes the following passage regarding competence to practice:
Competent representation may also involve the association or retention of a non-lawyer
advisor of established technological competence in the field in question. Competent
representation also involves safeguarding confidential information relating to the representation, including, but not limited to, electronic transmissions and communications.
As with the Rules in New York, the Florida Bar explicitly recognizes that some lawyers are going to have difficulty with the technical side of some cases and encourages them to seek out effective help in those cases.
It’s a gross understatement to say that ediscovery law is multifaceted. In addition to the law that every sitting judge must follow, each jurisdiction and each level of court has available to it a multitude of advisory guidelines that can affect how it interprets and gives meaning to sometimes ambiguous rules of state or federal civil procedure.
Also, lawyers must remember that, as ediscovery becomes more and more common, state bar associations are becoming less and less likely to forgive unfamiliarity with both basic and advanced technology and technique in the area of electronically stored information. State codes of professional conduct for attorneys are becoming as impactful a source of ediscovery law as the Federal Rules of Civil Procedure.