Your Electronic Discovery Plan: Rule 26 — Hidden
Nuggets for the Savvy Litigator
By Larry G. Johnson
One
of the most useful wonders of the world is the Swiss Army knife. I mean the one
actually used by the Swiss Army, not the many, cute, tourist versions of same.
I
got one as a present a long time ago from the family in Zurich that took me in
for a year as an exchange student. But after playing with all the things tucked
into the knife, I wound up using just the small blade, the corkscrew and the
toothpick (I am pretty sure it was a toothpick). Unlike the ever-proficient
Swiss, I chose not to take advantage of all the other tools, a number of which
I could never figure out.
And
so it is, I have found, with litigators who routinely ignore some really
advantageous tools sitting there in Rule 26, begging to be exploited. Gold
unmined!
You
have a lot to gain if you take the initiative early in a case to set the agenda
on discovery. That means always having in your back pocket a default discovery
plan ready to send to opposing counsel that you intend to use in your first
Rule 26(f) “meet-and-confer”and to present to the judge or magistrate at the first pretrial conference.
To
be more precise, you should have ready for each case an electronic discovery
plan as specifically referred to in FRCP 26(f)(3)1 and as implied in Washington CR 26(f).2 That plan
could be crucial, since e-discovery is unfortunately the most expensive
and potentially most contentious aspect of discovery these days and the one
most frequently exploited for waste and harassment by lawyers who think
litigation is a war of attrition.
A Momentary Detour for Some Background and Ammo
Below,
I present you with a sample template of an electronic discovery plan with mock
data for use in your practice as you see fit. But before we get there, I think
you should know there are some pretty hefty policy arguments you can summon to
support a discovery plan that serves the purposes of efficiency, fairness,
economy and the recently renewed emphasis on the importance of proportionality
in the updated FRCP 26.
And
let’s remember what Rule 1 says for both federal and Washington cases: All the
other rules that follow Rule 1 “should be construed, administered, and employed
by the court and the parties3 to secure the just, speedy, and inexpensive
determination of every action and proceeding.”
It
was not that long ago when I would remind lawyers attending CLEs at which I
spoke about the “just, speedy, and inexpensive” language in Rule 1. Inevitably
that was cause for guffaws and “Yeah, right.” But no more. Most courts and
consumers of legal services have had it with the waste and gamesmanship that
once thrived unchecked in the heyday of “kitchen sink” e-discovery.
But
the bench and bar have gone much farther than just curbing or sanctioning
e-discovery abuses. Some innovative and well-supported initiatives were
launched in recent years to come up with ideas and solutions to make
e-discovery more affordable, efficient and reasonable. Notable among these are
the 7th Circuit Pilot Project; the Standing Order in the 7th Circuit Pilot
Project; the Sedona Conference Principles; and the Model E-Discovery Order for
Patent Litigation created by the Eastern District of Texas.
Each
of these initiatives is worthy of emulation and discussion, but to highlight
their individual merits will have to be the subject for a future article. To
read these source documents on your own, you can find and download them
at www.e-dataevidence.com/Links.html.
Try Your Hand at It
Start
now to create your own “model” electronic discovery plan that incorporates some
or all of the good ideas welcomed by judges in the projects cited above.
Here
is the text of the suggested template I promised you, which happens to comply
with the federal Form 35 format, for you to use in your next case (and also
downloadable at www.e-dataevidence.com/Links.html):
Report of Parties’ Planning Meeting per CR 26(f) and
Discovery Plan
1. Meet and Confer. Pursuant to Fed. R. Civ. P. 26(f) [or
CR 26(f)], a meeting was held on March 12, 2016, at the Seattle law offices of
Tomlin & Chase, PLLC, and was attended by:
Larry G. Johnson, Attorney for Plaintiff.
Ronald J. Tomlin, Attorney for Defendants.
2. Pre-Discovery Disclosures. The parties will exchange by
June 4, 2016, the information specified in and required by Fed. R. Civ. P.
26(a) [or CR 26(a)], subject to the following agreed-upon protocol:
Responsive electronically stored information (“ESI”) will
be produced in native file format and, to the extent possible, produced in
electronic folders and subfolders as stored on the media from which the ESI is
produced, preserving the names used for those folders and subfolders.
Alternatively, the producing party will provide for each produced electronic
file a spreadsheet or other document with the “path” for each such file,
indicating the storage device’s hierarchy of folders within which the file was
stored. For example, if a file named “Jones.PDF” is stored on a desktop
computer in a folder named “Correspondence,” and that folder in turn is stored
in a folder named “ABC Project,” which in turn is stored in a folder called
“Current Projects,” then the production of “Jones.PDF” should be produced in
that hierarchy of folder and subfolders in a separate document, such as a spreadsheet,
and should show a link to “Jones.PDF” indicating its path, e.g.:
“C:\Users\Jones\Desktop\Current Projects\ABC Project\Correspondence.” This
procedure shall be deemed to satisfy the requirement of Fed. R. Civ. P.
34(b)(2)(E)(1) [or CR 34(b)(2)(E)(1)] that ESI be produced as “kept in the
usual course of business.”
3. Discovery Plan. The parties jointly propose to the court
the following discovery plan:
A. Electronic Discovery Plan.
1. ESI produced in this case shall be in accordance with
the protocol regarding native file types and tracking of file paths as outlined
in Paragraph 2 above.
2. Electronic discovery will be conducted in phases which
will be repeated iteratively as necessary to enhance the precision and accuracy
of search results, and so long as the effort is in accordance with the
proportionality requirements of Fed. R. Civ. P. 26(b)(2)(C) [or CR
26(b)(2)(C)]. The parties will cooperate and use best efforts in their use of
technology to achieve cost-effective results. To that end, the first phase of
keyword searches of potentially relevant ESI shall proceed as follows:
a) Emails and their attachments. Each party shall provide
to the other the names, job titles and job duties of five persons who may
become witnesses for that party and most knowledgeable about facts relevant to
this action, and that party shall conduct searches of all email accounts of
such persons, according to search terms set out in paragraph 2(b) below, and
each party shall produce to the other party all responsive ESI, i.e., both
emails and their attachments, not privileged, to the opposing party, no later
than July 1, 2016, subject to the other conditions set out in this paragraph 2.
b) Search terms. For the initial search, each party may
submit to the other party up to 10 search terms they are to use to search their
ESI. A combination of terms used together in a single search in order to
provide greater precision and accuracy of results shall be deemed, for the
purposes of this subsection, to be one search term. For example, a Boolean
search such as “Jones AND Smith BUT NOT Appleby” is one search term, as would
be a proximity search such as “Jones WITHIN 2 WORDS OF Ralph.” Each party shall
communicate within five business days from the date of this report the search
terms it wishes the opposing party to use as to the opposing party’s email sets
defined in subsection 2(a) above.
c) Date range. For the purposes of this initial phase, the
parties agree that the relevant date range within which potentially relevant
documents may be found is September 1, 2012, through September 1, 2015,
inclusive. Search term results for any ESI lying outside that date range may be
ignored.
d) Certification. The parties, through their attorneys,
will certify per Fed. R. Civ. P. 26(g) [or CR 26(g)] that all ESI produced as a
result of the searches is complete and accurate as of the date the production
is made.
e) The parties agree to meet and confer no later than
August 1, 2016, to attempt agreement on whether a second phase of e-discovery
is required; additional search terms to be used based on what is learned from
the first-phase results; and to identify any disputes regarding e-discovery
which may be submitted to an agreed-upon third party to mediate and/or resolve
as Special Master per Fed. R. Civ. P. 53 [or CR 53], or in any other
agreed-upon capacity.
f) The parties agree to follow and be bound by the Sedona
Principles regarding electronic discovery, as currently published at
www.thesedonaconference.org.
g) The parties will repeat the process as set forth above,
whereby the scope of ESI may be further limited or expanded as needed by
agreement between counsel or by order of this Court.
B. Discovery will be needed on the following subjects:
1. Plaintiff’s proposal: Defendant’s customer lists, sales
data, research data and technical specifications regarding Project ELMO;
Defendant’s emails regarding the foregoing internally and to/from third
parties; Defendant’s use of such information in attracting investors to the
planned incorporation of XYZ Industries; the source and amount of investments
obtained for XYZ Industries, along with Defendant’s business plan(s) regarding
same.
2. Defendant’s proposal: Plaintiff’s Minutes of Board
meetings regarding anything relative to Project ELMO, including plans regarding
abandoning that project; emails of Executive Committee employees regarding
those same subjects.
C. Discovery Cutoff. All discovery commenced in time to be
completed by January 12, 2017.
D. Discovery Amount.
1. Maximum of 25 interrogatories, including subparts, by
each party to the other party.
2. Maximum of 25 requests for admission, including
subparts, by each party to the other party.
3. Maximum of 5 depositions by Plaintiff and 5 by
Defendant. Each deposition is to be limited to a maximum of three hours unless
extended by agreement of the parties.
E. Reports from retained experts under Fed. R. Civ. P.
26(a)(2) [or CR 26(a)(2)] due:
from Plaintiff by November 15, 2016.
from Defendant by November 15, 2016.
F. Other Items.
1. The parties do not request a conference with the Court
before entry of the Scheduling Order.
2. The parties request a pretrial conference in December
2015.
3. Plaintiff is allowed until May 12, 2016, to join
additional parties and until July 15, 2016, to amend the pleadings.
4. Defendant is allowed until May 20, 2016, to join
additional parties and until July 15, 2016, to amend its pleadings.
5. All potentially dispositive motions should be filed by
December 1, 2016.
6. Settlement may be enhanced by use of the following
alternative dispute resolution procedure: appointment of a Special Master for
any discovery disputes per Fed. R. Civ. P. 53 [or CR 53].
7. Final lists of witnesses and exhibits under Fed. R. Civ.
P. 26(a)(3) [or CR 26(a)(3)] should be due:
from Plaintiff by November 15, 2016.
from Defendant by November 25, 2016.
8. The parties have 10 days after service of final lists of
witnesses and exhibits to list objections under Fed. R. Civ. P. 26(a)(3) [or CR
26(a)(3)].
9. The case should be ready for trial by January 4, 2017,
which at this time is expected to take approximately three days.
Dated this 14th day of March, 2016.
[signatures and contact information of counsel]
FOOTNOTES:
Larry G. Johnson is a lawyer in
Newcastle, and has been a member of the Washington bar since 1974. He recently
served on the E-Discovery Subcommittee of the WSBA Escalating Cost of Civil
Litigation (ECCL) Task Force. Besides being a litigator, for the past 20 years,
he has served as a consultant and expert witness in e-discovery matters. He does
business as Electronic Data Evidence (www.e-dataevidence.com).
1
(3) Discovery Plan. A discovery plan must state the parties’ views and
proposals on:
(A)
what changes should be made in the timing, form, or requirement for disclosures
under Rule 26(a), including a statement of when initial disclosures were
made or will be made;
(B)
the subjects on which discovery may be needed, when discovery should be
completed, and whether discovery should be conducted in phases or be
limited to or focused on particular issues;
(C) any
issues about disclosure, discovery, or preservation of electronically stored
information, including the form or forms in which it should be produced;
(D)
any issues about claims of privilege or of protection as trial-preparation
materials, including—if the parties agree on a procedure to assert these claims
after production—whether to ask the court to include their agreement in an
order under Federal Rule of Evidence 502;
(E)
what changes should be made in the limitations on discovery imposed under these
rules or by local rule, and what other limitations should be imposed; and
(F)
any other orders that the court should issue under Rule 26(c) or under Rule
16(b) and (c). (emphasis added)
2
CR 26(f), not as robust as Fed. R. Civ. P. 26(f), provides in part:
Discovery
Conference. At any time after commencement of an action the court may
direct the attorneys for the parties to appear before it for a conference
on the subject of discovery. The court shall do so upon motion by the
attorney for any party if the motion includes:
(1)
A statement of the issues as they then appear;
(2)
A proposed plan and schedule of discovery;
(3)
Any limitations proposed to be placed on discovery;
(4)
Any other proposed orders with respect to discovery; and
(5)
A statement showing that the attorney making the motion has made a
reasonable effort to reach agreement with opposing attorneys on the
matters set forth in the motion. Each party and each party’s attorney are under
a duty to participate in good faith in the framing of a discovery plan if
a plan is proposed by the attorney for any party. (emphasis added)
So,
while the federal rule requires a “meet and confer” followed by a pretrial
conference to devise a discovery plan, it appears that process is optional in
our state courts. The point of this article, however, is to try and convince
you to take the opportunity proactively via 26(f) anyway to put reasonable
controls on discovery before it even starts. I don’t think it’s a coincidence
that lawyers who can control the flow of a case are often the ones who win it.
3
The phrase “and the parties” was added in recent federal rules changes to
emphasize the point that litigants have responsibilities in this regard along
with the courts.
Published with permission by Larry G. Johnson
Originally published in the June 2016 issue of the King
County Bar Association Bar Bulletin and displayed on its website https://www.kcba.org/secure/PasswordHelp.aspx?Reset=105918cc1f06353
with this notice: All rights reserved. All content of this website is
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