Northern District of California Unveils E-Discovery Guidelines

Vanessa Blum

2012-11-29 12:00:00 AM

Take note, federal court practitioners: The Northern District of California really wants you to play nice when it comes to e-discovery.

The district on Tuesday unveiled new guidelines for handling electronic discovery, joining a growing list of jurisdictions taking measures to tackle the issue.

The local approach, which emphasizes cooperation between parties, combines flexible guidelines, a checklist for practitioners to use in discussions over e-discovery, and a three-page model order addressing the preservation and production of electronically stored information.

The idea was to provide practitioners with tools "to focus them on what's important and head off unnecessary disputes," said U.S. Magistrate Judge Elizabeth Laporte of San Francisco, who chaired the bench-bar committee that developed the guidelines.

Laporte said the group tried to create tools that would be flexible enough to address a wide variety of cases and could adapt as technology evolves.

U.S. Magistrate Judge Donna Ryu of Oakland also took part in the group, which included members of the defense and plaintiffs bar, an in-house lawyer and a representative of the U.S. attorney's office. They worked on it for more than one year.

The guidelines require parties to discuss the preservation of electronically stored information, or ESI, at the outset of litigation and to continue discussing e-discovery topics at routine meet-and-confer sessions. In most cases, lawyers are advised to appoint a liaison who will become familiar with the technical aspects of e-discovery.

A checklist — which can be printed on one double-sided page — identifies useful discussion topics ranging from what categories of electronic information should be preserved to how the parties can share costs.

"The court expects cooperation on issues relating to the preservation, collection, search, review and production of ESI," states one guideline. "The court notes that an attorney's zealous representation of a client is not compromised by conducting discovery in a cooperative manner."

The new guidelines come amid corporate clamoring over the burden and expense of e-discovery, which can require companies to retain and make available vast quantities of electronic information.

Oakland employment lawyer Kathryn Dickson of Dickson Geesman, a committee member, said solo and small-firm lawyers have been slower to master e-discovery and may avoid discussing details with opposing counsel because they feel outmatched. The guidelines and the checklist should help, she said.

"Plaintiffs lawyers feel technologically deficient, so they're really afraid to just dive in and grapple with these issues," Dickson said. "These are the kinds of things people really need to address so that they're properly representing their clients."

Edward Reines of Weil, Gotshal & Manges said the guidelines reflect "a lot of give and take" between the interest of plaintiffs lawyers in obtaining information early in a case and the concern of defense lawyers over responding to broad and expensive requests.

The guidelines encourage parties to prioritize and phase discovery requests and to balance the cost and burden of requests against factors like the amount in controversy, the parties' resources, the issues at stake in the litigation and the importance of the discovery to resolving the case.

"We now have a process to guide and standardize what we need to do," Reines said.

Also serving on the committee were Stephanie Mendelsohn, director of corporate records and e-discovery at Genentech Inc.; Joseph Saveri, a plaintiffs-side antitrust lawyer of the Joseph Saveri Law Firm; and Neill Tseng, a civil litigator in the U.S. attorney's office.

Laporte said the Northern District considered and built on initiatives taken by other federal district courts to deal with e-discovery, as well as a pilot project launched in the U.S. Court of Appeals for the Seventh Circuit in 2009.

The district court's combination of guidelines, a checklist and a model order is "a good example" for other jurisdictions to follow, said Thomas Allman, former general counsel of BASF Corp. and chair of The Sedona Conference's e-discovery working group.

Litigants should neither be intimidated nor obsessed by e-discovery, he said.

"The fact of the matter is discovery in general is now dominated by electronically stored information," Allman said. "Generally speaking, you get a better result if you are mindful of the need to give and get and don't fight over things that aren't worth fighting over."

This article originally appeared in The Recorder.