{"id":1180,"date":"2013-04-03T14:28:30","date_gmt":"2013-04-03T14:28:30","guid":{"rendered":"http:\/\/jolt.richmond.edu\/?p=1180"},"modified":"2019-03-08T19:52:36","modified_gmt":"2019-03-09T00:52:36","slug":"local-rules-standing-orders-and-model-protocols-where-the-rubber-meets-the-e-discovery-road","status":"publish","type":"post","link":"https:\/\/blog.richmond.edu\/jolt\/2013\/04\/03\/local-rules-standing-orders-and-model-protocols-where-the-rubber-meets-the-e-discovery-road\/","title":{"rendered":"Local Rules, Standing Orders, and Model Protocols: Where the Rubber Meets the (e-Discovery) Road"},"content":{"rendered":"

\"pdf_icon\"Download PDF<\/a><\/p>\n

\u00a0Cite as:\u00a0Thomas Y. Allman, Local Rules, Standing Orders, and Model\u00a0Protocols: Where the Rubber Meets the (E-Discovery) Road<\/em>,\u00a019 RICH. J. L. & TECH 8 (2013), available at\u00a0<\/em>http:\/\/jolt.richmond.edu\/v19i3\/article8.pdf.<\/p>\n

By Thomas Y. Allman*<\/p>\n<\/p>\n

[District Courts], impatient with the failure of the national system to solve pressing, indeed urgent, procedural problems, utilize local rules in an effort to shape pragmatic solutions . . . . [as] one route to procedural change<\/em>.[1]<\/p>\n

\u00a0<\/em><\/p>\n

I.\u00a0 Introduction<\/b><\/h3>\n

[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In late 2012, the U.S. District Courts for the Western District of Washington,[2] the Northern District of California,[3] and the District of Oregon[4] all announced, in close proximity with one another, local initiatives that deal with e-Discovery issues that the 2006 E-Discovery Federal Rules Amendments (the \u201c2006 Amendments\u201d or the \u201cAmendments\u201d) largely ignored.\u00a0 These proposals are part of a second wave of local rulemaking, which is more focused on pragmatic solutions than earlier efforts.<\/p>\n

[2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A large number of federal districts have undertaken local initiatives to deal with e-Discovery.[5]\u00a0 Some merely make passing reference to e-Discovery in local rules while others explicitly describe topics deemed worthy of attention or mandate specific measures to resolve open e-discovery issues.\u00a0 However, many districts have yet to make such special accommodations.<\/p>\n

[3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Less visible but equally important efforts have been made to accommodate e-Discovery by amendments to standard forms.\u00a0 For example, there are now many useful forms available for Rule 26(f) reports and discovery plans, as well as for joint or individualized proffers of scheduling orders or case management orders.<\/p>\n

[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Section II of this Article describes the legal context for local initiatives.[6]\u00a0 Section III explores the types of local responses to the 2006 Amendments.[7]\u00a0 In Section IV, the efficacy of key components emerging from the variety of approaches described is evaluated.\u00a0 The author concludes that concerns over a lack of procedural uniformity among the districts are largely overblown and that some initiatives serve as welcome harbingers of national rulemaking.\u00a0 The author also expresses concerns about over-reaching in some of the measures studied.<\/p>\n

 <\/p>\n

II.\u00a0 The Legal Context<\/b><\/h3>\n

[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This Article turns first to the general description of rulemaking at the local level, focusing first on the statutory and rule-based framework.<\/p>\n

A.\u00a0 Local Rules<\/b><\/h3>\n

[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The authority to enact local rules flows from 28 U.S.C. \u00a7 2071 and Rule 83 of the Federal Rules of Civil Procedure.\u00a0 A local rule \u201cmust be consistent with\u2014but not duplicate\u2014federal statutes and rules adopted under 28 U.S.C. \u00a7\u00a7 2072 and 2075.\u201d[8]\u00a0 Local rules typically \u201csupplement the applicable Federal Rules\u201d[9] and have the force of law.[10]\u00a0 The mere fact that a federal rule is not fully comprehensive, such when the rule is \u201csilent\u201d on a topic, does not bar otherwise permissible local initiatives.[11]<\/p>\n

[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Unless a majority of the district judges approve the local rules after \u201cgiving appropriate public notice and an opportunity for comment,\u201d they are ineffective.[12]\u00a0 Districts must use Local Rules Advisory Committees to assist in developing suggestions for and reviewing potential changes in the rules.[13]\u00a0 The rules are available on district websites and in legal research databases.[14]\u00a0 Numbering must conform to a uniform national system based on the Federal Rules.[15]\u00a0 In Hollingsworth v. Perry<\/i>, the Supreme Court confirmed that local rules enacted without meeting these procedural requirements risk invalidity.[16]<\/p>\n

[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Not all districts rely on extensive local rules.[17]\u00a0 Some also use \u201cAdministrative,\u201d \u201cStanding,\u201d or \u201cGeneral\u201d orders, typically to provide administrative detail.[18]\u00a0 In most districts, they are also available on the district website.[19]\u00a0 When used to provide procedural mandates, however, they are subject to the same consistency requirements as local rules.[20]\u00a0 In 2009, the Standing Committee issued helpful guidelines on the topic.[21]<\/p>\n

B.\u00a0 Individual Judicial Practices<\/b><\/h3>\n

[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Rule 83(b) acknowledges that individual<\/i> district judges may \u201cregulate [their] practice in any manner consistent with\u201d federal and local rules or statutes.[22]\u00a0 These preferences are often expressed in \u201cpractice guidelines\u201d or in case management forms reflecting the preferences of individual judges.[23]\u00a0 Many districts provide easy access on websites,[24] but in some instances, they can be difficult to locate.<\/p>\n

[10]\u00a0\u00a0\u00a0\u00a0\u00a0 District judges play an active role in tailoring e-Discovery to the needs of individual cases through case management.\u00a0 This is consistent with an inherent right to manage individual cases,[25] which trumps mandates of the national and local rules.\u00a0 It has been observed that individual judicial practices may introduce more disuniformity into the civil litigation process than do varying local rules.[26]\u00a0 Not surprisingly, commentators universally advocate paying close attention to such local practices.[27]<\/p>\n

C.\u00a0 Standardized Forms<\/b><\/h3>\n

[11]\u00a0\u00a0\u00a0\u00a0\u00a0 Standardized forms are provided in many districts for reports under Rule 26(f), discovery plans, scheduling orders, and the like, to conform to national or local requirements.\u00a0 In some districts, the forms may be an integral part of the local rules.\u00a0 In others, their adoption, modification, and implementation constitute an ad hoc<\/i> process.\u00a0 The ease of access varies with some districts doing better than others.[28]<\/p>\n

[12]\u00a0\u00a0\u00a0\u00a0\u00a0 The Administrative Office of the Judicial Conference (the \u201cAO\u201d) makes national forms relating to discovery available but none relate to case management.[29]\u00a0 The Federal Judicial Center (the \u201cFJC\u201d) has collected some sample forms in connection with its Civil Litigation Management Manual.[30]<\/p>\n

D.\u00a0 Consistency<\/b><\/h3>\n

[13]\u00a0\u00a0\u00a0\u00a0\u00a0 The consistency of a local rule with the Federal Rules can present subtle issues.\u00a0 If a local initiative is challenged, the test is \u201cwhether the two rules are textually inconsistent or whether the local rule subverts the overall purpose of the federal rule.\u201d[31]\u00a0 When a specific amendment is at issue, reliance on the intent expressed in relevant Committee Reports is one of the factors used to assess the intended effect.[32]\u00a0 In Colgrove v. Battin<\/i>, <\/i>for example, the Court tolerated local rules that reduced the minimum jury size despite what appeared to be an inconsistent federal rule.[33]<\/p>\n

[14]\u00a0\u00a0\u00a0\u00a0\u00a0 Congress has from time to time authorized the development of local initiatives without regard to consistency.[34]\u00a0 One can attribute the current diversity in case management regimes in many districts to measures adopted because of the 1990 Civil Justice Reform Act, under which districts were directed to address cost and delay in civil litigation from \u201cthe bottom up.\u201d[35]<\/p>\n

[15]\u00a0\u00a0\u00a0\u00a0\u00a0 Local districts are expected to act consistently with the Federal Rules.[36]\u00a0 Copies of local
\nrules must be furnished to the Administrative Office and to the relevant Circuit Judicial Council.[37]\u00a0 The Judicial Councils have the primary responsibility to ensure \u201cconsistency [of Local Rules] with [existing Federal Rules],\u201d and the power to \u201cmodify or abrogate any such rule.\u201d[38]\u00a0 Historically, Circuit Councils have not taken an active role,[39] although there are current signs to the contrary.[40]\u00a0 As recently as 2004, an ad hoc<\/i> committee of the Standing Committee studied a subset of the local rules for consistency and made recommendations to the district courts involved.[41]<\/p>\n

E.\u00a0 \u201cPilot Programs\u201d<\/b><\/h3>\n

[16]\u00a0\u00a0\u00a0\u00a0\u00a0 The Judicial Conference and Congress utilize formal pilot projects to test procedural innovations.\u00a0 For example, \u201c[f]ourteen federal district courts have been selected to participate in a 10-year pilot project . . . to enhance expertise in patent cases among U.S. district judges,\u201d which will involve the generation of sample local rules and forms.[42]\u00a0 In addition, a pilot project designed to standardize early disclosures in employment litigation has been undertaken[43] for use by individual judicial officers or as a model for a local rule.[44]<\/p>\n

[17]\u00a0\u00a0\u00a0\u00a0\u00a0 The Federal Rules do not, however, explicitly authorize experimental or \u201cpilot projects\u201d to test innovative local rules or procedures.\u00a0 Indeed, the Rules Committee refused to proceed with such proposals in 1983[45] and 1991.[46]\u00a0 Nonetheless, the District of Colorado recently amended its local rules to authorize pilot programs or special projects by general order.[47]<\/p>\n

[18]\u00a0\u00a0\u00a0\u00a0\u00a0 There is a history of reliance on local experimentation before adopting a measure as a uniform federal procedural rule.[48]\u00a0 It is far less risky to experiment with potential solutions at the local level, which are \u201cinspired by a belief that the [national] rulemakers got it wrong.\u201d[49]\u00a0 District courts \u201care willing to try [solutions] because others have confidence in them.\u201d[50]\u00a0 Consistency with the Federal Rules is rarely perceived as a barrier under those circumstances.[51]<\/p>\n

 <\/p>\n

III.\u00a0 Local E-Discovery Initiatives<\/b><\/h3>\n

[19]\u00a0\u00a0\u00a0\u00a0\u00a0 At their core, the 2006 Amendments responded to the need to enhance the discovery of electronically stored information.[52]\u00a0They became effective in December 2006 when, after several years of study, it was apparent that the differences between electronic data and traditional documents justified rule amendments.[53]<\/p>\n

[20]\u00a0\u00a0\u00a0\u00a0\u00a0 In their final version,[54]\u00a0changes to Rules 16(b), 26(a), and 26(f) were coupled with broadly worded amendments authorizing the discovery of electronically stored information (\u201cESI\u201d), dealing with its form or forms of production, and providing in Rule 26(b)(2), a vague presumption against the production of ESI from inaccessible sources.[55]\u00a0 No meaningful standards for preservation were included and cost shifting was ignored.\u00a0 The Amendments were largely silent as to the role, if any, of local rules and standardized forms.<\/p>\n

[21]\u00a0\u00a0\u00a0\u00a0\u00a0 As noted, federal district courts have reacted in a wide variety of ways, ranging from total avoidance of the subject to an assortment of actions involving local rules, informal guidelines, and standardized forms.<\/p>\n

A.\u00a0 Early Enactments<\/b><\/h3>\n

[22]\u00a0\u00a0\u00a0\u00a0\u00a0 Before the 2006 Amendments took effect, few districts addressed the unique issues that e-Discovery presents.\u00a0 The Eastern and Western Districts of Arkansas were the first to act when they adopted an \u201cOutline For [FRCP] 26(f) Report\u201d for use in their districts.[56]\u00a0 At the 2004 conference held at Fordham Law School, an involved judicial officer reported that the experience under the rule to date had been that \u201cmost attorneys work out these issues at the onset of litigation and make a report.\u201d[57]<\/p>\n

[23]\u00a0\u00a0\u00a0\u00a0\u00a0 District courts in Wyoming,[58] New Jersey,[59] and the Middle District of Pennsylvania[60] also adopted local rules that utilize a similar approach, with an added focus on counsel undertaking preparatory investigation of client systems.[61]\u00a0 In addition, the District of Delaware issued a \u201cDefault Standard,\u201d which required, inter alia<\/i>, that parties appoint \u201cretention coordinators\u201d and consult with an eye towards reaching binding preservation agreements.[62]<\/p>\n

[24]\u00a0\u00a0\u00a0\u00a0\u00a0 The Northern District of Ohio[63] and the Middle[64] and Western[65] Districts of Tennessee quickly adopted Delaware\u2019s Default Standard.\u00a0 Those provisions remain in effect, although the Delaware standard has been significantly updated since then.<\/p>\n

B.\u00a0 Post Amendment Activity<\/b><\/h3>\n

[25]\u00a0\u00a0\u00a0\u00a0\u00a0 After the Amendments came into effect in late 2006, additional districts acted to highlight e-Discovery issues.[66]\u00a0 The primary emphasis was on preservation, form of production, and presumptive limits on production from inaccessible sources of ESI.\u00a0 Some districts merely referenced ESI as a topic for discussion.[67]\u00a0 Others provided extensive checklists of the items identified in the Federal Rules.[68]\u00a0 Yet, other districts, such as those in Mississippi,[69] Pennsylvania,[70] and New York,[71] provided substantive guidance in mandatory terms.<\/p>\n

[26]\u00a0\u00a0\u00a0\u00a0\u00a0 The bulk of the changes were reflected in the standard forms in use for case management.\u00a0 Many districts simply incorporated references to the topics referenced in Rules 26(f) and 16(b).[72]\u00a0 Other districts went further[73] and used \u201cspeaking forms,\u201d which include substantive instructions on how to handle the issues.[74]<\/p>\n

[27]\u00a0\u00a0\u00a0\u00a0\u00a0 A few districts, such as the District Court of Kansas, provided informal \u201cguidelines.\u201d[75]\u00a0 The Central District of Illinois posted the Sedona Conference\u00ae<\/sup> Principles along with its local rules and orders.[76]\u00a0 Perhaps the most ambitious effort was the twenty-eight-page \u201cSuggested Protocol for Discovery of [ESI]\u201d[77] adopted for use before courts in the District of Maryland that blends suggestions with mandatory elements.[78]<\/p>\n

[28]\u00a0\u00a0\u00a0\u00a0\u00a0 There has also been a revival of case differentiation under which e-Discovery guidance is tied to the type of litigation.[79]\u00a0 The Southern District of New York is currently testing the impact of an enhanced model order applied on a case-by-case basis in cases deemed to be complex.[80]<\/p>\n

[29]\u00a0\u00a0\u00a0\u00a0\u00a0 A similar differentiation process is occurring with respect to patent litigation.\u00a0 In the Districts of Maryland[81] and Massachusetts,[82] for example, the only mention of ESI in the district rules relates to patent litigation.\u00a0 Similarly, a subcommittee of the Federal Circuit advocates the use of targeted rules for e-mail production in patent cases.[83]\u00a0 As noted, the District of Oregon has recently proposed to adopt the model order as a local rule.[84]<\/p>\n

C.\u00a0 The Second Wave<\/b><\/h3>\n

[30]\u00a0\u00a0\u00a0\u00a0\u00a0 Since roughly 2009, local initiatives have increasingly focused on pragmatic solutions for issues emphasizing the role of proportionality and cooperation.\u00a0 A leading example is the Seventh Circuit E-Discovery Pilot Program, a comprehensive approach implemented by Standing Orders adopted in individual cases.[85]\u00a0 The pilot program is based on \u201cprinciples\u201d designed to encourage cooperative resolution of disputes while emphasizing guidance on the underlying issues.[86]<\/p>\n

[31]\u00a0\u00a0\u00a0\u00a0\u00a0 Principle 2.04 (Scope of Preservation), for example, mandates the taking of \u201creasonable and proportionate steps to preserve relevant and discoverable ESI\u201d within a party\u2019s possession, custody, or control.[87]\u00a0 This articulation, a first among rules, echoes the Sedona Conference\u00ae<\/sup> Proportionality Principles[88] and helps to fill the gap in the 2006 Amendments.\u00a0 Another innovative feature is the inclusion of a list of categories of ESI which are \u201cgenerally not discoverable in most cases\u201d and whose possible preservation must be raised \u201cat the meet and confer or as soon ther
\neafter as practicable.\u201d[89]\u00a0 These proportionally based distinctions also correspond to the recommendations found in the Sedona Conference\u00ae<\/sup> Best Practice Principles.[90]<\/p>\n

[32]\u00a0\u00a0\u00a0\u00a0\u00a0 The Northern District of Illinois has recently proposed a local patent rule oriented towards guidance along similar lines.[91]\u00a0 Presumptive limitations were also incorporated into the revised Delaware Default Standard,[92] whose categories of ESI in its appendix echo those of Principle 2.04.[93]\u00a0 Similarly, the model protocol proposed for use in the Western District of Washington also lists categories of ESI that do not need to be preserved.[94]<\/p>\n

[33]\u00a0\u00a0\u00a0\u00a0\u00a0 The Federal Circuit has also introduced a \u201cModel Order\u201d for patent cases that addresses the number of custodians from whom production of e-mail may be sought in patent litigation as well as the number of search terms that can be introduced without agreement or court order.[95]\u00a0 The model protocol was adapted for use in the Eastern District of Texas[96] and proposed for\u00a0 the Oregon District as a local rule.[97]<\/p>\n

 <\/p>\n

IV.\u00a0 Evaluation<\/b><\/h3>\n

[34]\u00a0\u00a0\u00a0\u00a0\u00a0 In this Section, the local initiatives enacted to guide e-Discovery are assessed.\u00a0 The Section first deals with the pros and cons of the emphasis on early agreement before discussing specific elements of interest\u2014and possible shortcomings\u2014that have emerged.<\/p>\n

[35]\u00a0\u00a0\u00a0\u00a0\u00a0 Promotion of early agreement by parties and active judicial involvement of the judiciary in the management of discovery has been encouraged since at least 1983, but the emphasis on the \u201cmeet and confer\u201d process is of more recent vintage.[98]\u00a0 To some, the 2006 Amendments bring the process to its ultimate intended use.[99]<\/p>\n

[36]\u00a0\u00a0\u00a0\u00a0\u00a0 The emphasis is on the preparation of a detailed \u201cdiscovery plan\u201d to be furnished to the court before the initial pretrial conference, coupled with encouragement to courts to include reference to ESI agreements in the scheduling order.\u00a0 Parties are expected to discuss any preservation issues and disclosure and discovery issues.\u00a0 Rule 16(b) makes it clear that any scheduling orders can \u201cprovide for the disclosure or discovery of [ESI].\u201d<\/p>\n

A.\u00a0 The Scorecard<\/b><\/h3>\n

[37]\u00a0\u00a0\u00a0\u00a0\u00a0 Many of the ninety-four federal district courts studied,\u00a0 including a number located in major urban districts, have ignored e-Discovery, at least on district-wide basis.[100]\u00a0 This even includes some districts that have only recently adopted other amendments to their local rules governing the Rule 26(f) process.[101]<\/p>\n

[38]\u00a0\u00a0\u00a0\u00a0\u00a0 At least thirty-two districts, however, have acknowledged the discovery of electronically stored information in civil litigation.[102]\u00a0 Of these districts, seven merely make passing reference to e-Discovery in their local rules.[103]\u00a0 Another twelve districts[104] emphasize e-Discovery topics deemed most worthy of attention at Rule 26(f) conferences.\u00a0 Nine districts,[105] as well as others using model orders,[106] have adopted pragmatic solutions that address gaps in the Amendments more aggressively.\u00a0 At least five additional districts have released non-binding guidance for parties on the topic of e-Discovery.[107]<\/p>\n

[39]\u00a0\u00a0\u00a0\u00a0\u00a0 Many of these efforts center on use of standardized forms for Rule 26(f) reports and discovery plans, as well as for scheduling orders or case management orders.\u00a0 This has implications for the future.\u00a0 With the possible consignment of Official Form 52 to oblivion, it will be important for the Administrative Office of the Judicial Conference to make more of an effort to collect the best extant forms and make them readily available to all districts on its national website.[108]<\/p>\n

B.\u00a0 Early Attention<\/b><\/h3>\n

[40]\u00a0\u00a0\u00a0\u00a0\u00a0 It is not terribly surprising that many districts have not yet formally addressed e-Discovery.\u00a0 Busy courts and practitioners may feel that individualized accommodations can be made in cases where e-discovery plays an important role.\u00a0 In addition, some may have concluded that the 2006 Amendments and emerging case law suffice to place parties and their counsel on notice of the need to address e-Discovery.<\/p>\n

[41]\u00a0\u00a0\u00a0\u00a0\u00a0 However, there is another possibility.\u00a0 It may be that the assumed efficacy of early attention to ESI discovery is overstated.\u00a0 Most Rule 26(f) conferences last for short periods and rarely involve ESI issues.[109]\u00a0 The conferences may be poorly timed.[110]\u00a0 Preservation decisions, for example, must often be made before Rule 26(f) conferences.[111]\u00a0 Moreover, the idea that busy judges can resolve meaningful disputes about the scope of discovery before requests have even been served may be wishful thinking.\u00a0 There are also avoidable costs that may be wasted if expended too early on e-discovery.[112]\u00a0 After all, most cases settle.[113]<\/p>\n

[42]\u00a0\u00a0\u00a0\u00a0\u00a0 Accordingly, it is not clear that front-loading the process by intense and expensive preparations is the most effective means of reducing costs and encouraging cooperation.\u00a0 \u00a0Other solutions may be required, such as presumptive \u201chard limits\u201d or cost shifting, which provide assurance of fairness.\u00a0 The advantage of experimentation with such measures at the local level is that adjustments can be made as experience mounts, with the best of them slated for national rulemaking.<\/p>\n

C<\/b>.\u00a0 <\/b>\u00a0Assessment:\u00a0 The <\/b>Core <\/b>Initiatives<\/b> <\/b><\/h3>\n

[43]\u00a0\u00a0\u00a0\u00a0\u00a0 Local initiatives have been prompted by the gaps in the 2006 Amendments, especially as to the onset and scope of preservation obligations, variances in culpability for sanctions, the lack of cost-shifting, and the vagueness of the application of the \u201caccessibility\u201d doctrine to preservation.<\/p>\n

i.\u00a0 Preservation<\/b><\/h4>\n

[44]\u00a0\u00a0\u00a0\u00a0\u00a0 The 2006 Amendments ducked preservation issues.[114]\u00a0 Instead, drafters added Rule 26(b)(2)(B), a presumptive limitation on production<\/i> of ESI based on \u201caccessibility\u201d subject to overriding for \u201cgood cause.\u201d[115]\u00a0 No attempt was made to deal with its implications for preservation, despite an understanding of the issue.[116]<\/p>\n

[45]\u00a0\u00a0\u00a0\u00a0\u00a0 The Seventh Circuit Pilot Principles and other local initiatives address this shortcoming directly.\u00a0 Principle 2.04 provides that \u201c[e]very party to litigation and its counsel are responsible for taking reasonable and proportionate steps to preserve relevant and discoverable ESI within its possession, custody or control.\u201d[117] \u00a0In addition, the Seventh Circuit Principle limits the need to preserve specific forms of ESI[118] absent agreement, thus removing incentives to \u201csand-bag\u201d an opponent by not mentioning the preservation issue earlier.<\/p>\n

[46]\u00a0\u00a0\u00a0\u00a0\u00a0 The revised Delaware Default Standard[119] also notes that parties need not modify \u201con a going-forward basis\u201d the backup or archive procedures in place provided that they preserve non-duplicable discoverable material.\u00a0 Proposals from the Western District of Washington[120] and the Northern District of Illinois[121] also incorporate adopted elements of this approach, as do examples from best practice agreements of parties.[122]<\/p>\n

[47]\u00a0\u00a0\u00a0\u00a0\u00a0 Professor Stephen Subrin has noted that firm limits are often the best way of \u201cproviding constraint, focus, and predictability to the unruly aspects of the federal rule[s].\u201d[123]\u00a0 They provide a useful \u201cstarting point to allow parties and district courts to tailor discovery plans as appropriate\u201d[124] and help deal with \u201cover-preservation,\u201d an abiding problem identified at the 2010 Duke Litigation Conference and the Dallas Conference of 2011.[125]<\/sup><\/sup><\/p>\n

[48]\u00a0\u00a0\u00a0\u00a0\u00a0 Given that specific limitations already exist on the use of interrogatories[126] and depositions,[127] it seems unlikely that limits on preservation efforts exceed permissible consistency boundaries.\u00a0 The limits are subject to the discretion of the court, applied on a case-by
\n-case basis, and are not textually inconsistent with any existing rule or statute.<\/p>\n

[49]\u00a0\u00a0\u00a0\u00a0\u00a0 It would be preferable, however, to adopt these presumptive limitations as a national rule.\u00a0 The Civil Rules Advisory Committee (the \u201cRules Committee\u201d) is considering recommending the amendment of Rule 26(b)(1) to limit discovery to information \u201crelevant to any party\u2019s claim or defense and proportional to the needs of the case considering [the factors transferred from (b)(2)(C)(iii)].\u201d[128]\u00a0 That approach could be combined with other pending proposals to provide \u201cdefault limitations on discovery of [ESI],\u201d which are \u201cuseful referents for preservation decisions,\u201d given that preservation is limited to \u201c\u2018discoverable\u2019 information.\u201d[129]<\/p>\n

ii.\u00a0 Cooperation<\/b><\/h4>\n

[50]\u00a0\u00a0\u00a0\u00a0\u00a0 The Federal Rules do not currently mandate a \u201cduty to cooperate,\u201d having explicitly rejected proposals to do so in former times.[130]\u00a0 Instead, the Rules require participation by counsel and parties in \u201cgood faith\u201d in preparing discovery plans and attending case management conferences.[131]<\/p>\n

[51]\u00a0\u00a0\u00a0\u00a0\u00a0 Many local rules, however, invoke cooperation as an aspirational standard.[132]\u00a0 Thus, the Delaware Standard[133] provides that the court expects parties to cooperate with each other in arranging and conducting discovery.[134]\u00a0 Similar expectations are found in certain ESI Guidelines[135] as well as individualized judicial instructions.[136]\u00a0 The model order recommended for use in the Northern District of California recites that \u201c[t]he parties are aware of the importance the Court places on cooperation and commit to cooperate in good in good faith throughout the [litigation covered by the Order].\u201d[137]<\/p>\n

[52]\u00a0\u00a0\u00a0\u00a0\u00a0 Some districts emphasize that this involves \u201cvoluntary\u201d action of counsel through \u201cinformal, cooperative discovery practices.\u201d[138]\u00a0 Local Rule 26.4 for the Southern and Eastern Districts of New York also provides that cooperation of counsel must be \u201cconsistent with the interests of their clients.\u201d[139]\u00a0 An open-ended mandate for cooperation, however,\u00a0 is a slippery slope.[140]\u00a0 A court has no authority to force a party to compromise a position that it does not wish to take.[141]\u00a0 Placing that burden on counsel can put counsel in an impossible position with her client.[142]\u00a0 There is also the problem of interference with the primary source of counsel responsibility, the state licensing activities.[143]<\/p>\n

[53]\u00a0\u00a0\u00a0\u00a0\u00a0 It is clear, however, that the judicial enthusiasm for cooperation is widespread and growing.\u00a0 One can safely assume that this will continue given the enthusiasm for the call to change the \u201cculture of discovery from adversarial conduct to [one of] cooperation.\u201d[144]\u00a0 There seems to be no fundamental inconsistency between the Federal Rules and a call for \u201ccooperation\u201d under local initiatives.[145]<\/sup><\/sup><\/p>\n

[54]\u00a0\u00a0\u00a0\u00a0\u00a0 The Rules Committee has been asked to consider adding cooperation to Rule 1.\u00a0 At the November 2012 meeting, the Duke Subcommittee appeared to step back from earlier support for requiring that \u201cparties [should] cooperate to achieve\u201d the ends of Rule 1 because of the open-ended nature of the commitment.[146]\u00a0 However, no vote was taken on the proposal, which remains open.[147]<\/p>\n

iii.\u00a0 Cost Shifting<\/b><\/h4>\n

[55]\u00a0\u00a0\u00a0\u00a0\u00a0 The 2006 Amendments avoided dealing with allocation of excessive costs attributable to preservation or production of ESI.\u00a0 A number of local initiatives identify cost shifting as an option.\u00a0 New Jersey local rules, for example, require parties to discuss \u201c[w]ho will bear the costs of preservation, production, and restoration (if necessary) of any digital discovery.\u201d[148]\u00a0 Wyoming does the same.[149]\u00a0 The Northern District of Ohio Default Standard provides that while \u201ccosts of discovery shall be [generally] borne by each party,\u201d the court \u201cwill apportion the costs of electronic discovery upon a showing of good cause.\u201d[150]<\/p>\n

[56]\u00a0\u00a0\u00a0\u00a0\u00a0 While some argue that rules \u201cshould require courts to consider cost shifting whenever a party seeks electronic discovery,\u201d[151] a better approach would require cost-shifting for additional costs of preservation and production beyond a core of basic information.[152]\u00a0 The Model Order for the Federal Circuit, for example, requires that \u201c[c]osts will be shifted for disproportionate ESI production requests pursuant to [FRCP] 26.\u201d[153]\u00a0 Thus, e-mail production requests are limited \u201cto a total of five custodians per producing party\u201d with costs shifted for additional requests.[154]<\/p>\n

[57]\u00a0\u00a0\u00a0\u00a0\u00a0 The Duke Subcommittee of the Rules Committee, while stating that it \u201cis not enthusiastic about cost-shifting,\u201d has endorsed an amendment to Rule 26(c) that makes the availability of cost shifting a more \u201cprominent feature of Rule 26(c).\u201d[155]\u00a0 Those provisions could be \u201cfine-tuned\u201d to differentiate between costs related to core information and those which exceed presumptive limitations.<\/p>\n

[58]\u00a0\u00a0\u00a0\u00a0\u00a0 Congress is currently taking a \u201cwatch and see\u201d attitude, but is clearly interested in the issue.[156]<\/p>\n

iv.\u00a0 Production Formats<\/b><\/h4>\n

[59]\u00a0\u00a0\u00a0\u00a0\u00a0 Rules 34 and 45 provide that ESI is to be produced, absent agreement or court order, in the form in which it was maintained or in a \u201creasonably usable form.\u201d[157]\u00a0 The clear preference is for parties to reach agreements without involving the courts.[158]\u00a0 The Rules Committee apparently anticipated that local rules would \u201cpick up the slack.\u201d[159]\u00a0 That appears to be exactly what has happened.<\/p>\n

[60]\u00a0\u00a0\u00a0\u00a0\u00a0 By an overwhelming consensus, local rules and guidelines favor the use of text searchable \u201cimaged\u201d formats, such as PDF, TIFF, or JPEG files for production of e-mail and other document like images.[160]\u00a0 Parties are free, of course, to vary requirements and to specify the fields of metadata to be included in load files to accomplish these goals.[161]\u00a0 Native production is used only for files \u201cnot easily converted to image format, such as Excel, Access files, and drawing files.\u201d[162]<\/p>\n

[61]\u00a0\u00a0\u00a0\u00a0\u00a0 As explained by a leading case,<\/i> \u201ceven if native files are requested, it is sufficient to produce memoranda, emails, and electronic records in PDF or TIFF format accompanied by a load file containing searchable text and selected metadata.\u201d[163]\u00a0 Given the consistency of this approach with the intent of the 2006 Amendments, there is no need to further address this by amendments to the national rules.<\/p>\n

v.\u00a0 Search Methodology<\/b><\/h4>\n

[62]\u00a0\u00a0\u00a0\u00a0\u00a0 A number of local rules require parties to discuss search methodology, including an exchange of information about any keywords employed,[164] and favor \u201cdialogue to discuss the search terms, as required by Rules 26 and 34.\u201d[165]\u00a0 The Delaware Default Standard suggests that \u201ca requesting party may request no more than 10 additional search terms to be used in connection with an electronic search.\u201d[166]<\/p>\n

[63]\u00a0\u00a0\u00a0\u00a0\u00a0 More recently, \u201cpredictive coding\u201d and other types of \u201clatent semantic indexing\u201d[167] began to raise similar issues.\u00a0 One challenge is that parties who seek to utilize these techniques may be required to make a copy of the set of responsive and non-responsive materials used to \u201ctrain\u201d the mathematical models employed available.[168]<\/p>\n

[64]\u00a0\u00a0\u00a0\u00a0\u00a0 However, while measures supporting discussions are consistent with the Federal Rules, one cannot reasonably read Rule 16 or Rule 26(f) to support mandating the choice.[169]\u00a0 As emphasized in Sedona Conference\u00ae<\/sup> Principle Six, \u201c[r]esponding parties are best situated to evaluate\u201d and choose the \u201cprocedures, methodologies, and technologies\u201d most appropriate to preserve and produce their own ESI.[170]\u00a0 Compelling a particular choice without regard to individualized proof that a party would not otherwise meet its discovery obl
\nigations[171] would improperly intrude on \u201cprivate primary activity\u201d[172] because it affects \u201cbehavior at the planning as distinguished from the disputative stage of activity.\u201d[173]<\/p>\n

[65]\u00a0\u00a0\u00a0\u00a0\u00a0 It is one thing to require, for example, designation of a contact person or \u201cliaison\u201d to coordinate with the court and parties on technical e-Discovery issues.[174]\u00a0 It is quite another to reach out beyond the litigation context and compel a party to use a particular methodology in carrying out its obligations.[175]\u00a0 Any such basic change requires national authorization.[176]<\/p>\n

vi<\/b>.\u00a0 Disclosures Without Discovery<\/b><\/h4>\n

[66]\u00a0\u00a0\u00a0\u00a0\u00a0 Some local rules impose affirmative obligations on counsel to become knowledgeable about client information management systems[177] and requires counsel to share that information during the Rule 26(f) process.\u00a0 According to one local drafting committee, these types of rules are intended to \u201cexpress the obligations of counsel as articulated in case law beginning with the Zubulake<\/i> cases.\u201d[178]<\/p>\n

[67]\u00a0\u00a0\u00a0\u00a0\u00a0 In a broad sense, this is consistent with the observation in the Committee Note to Rule 26(f) that \u201c[i]t may be important for the parties to discuss [information systems] and accordingly important for counsel to become familiar with those systems before the conference.\u201d[179]\u00a0 However, these comments in the Committee Note are not sufficient to supersede the limitations on disclosures without discovery so carefully expressed in Rule 26(a).[180]<\/p>\n

[68]\u00a0\u00a0\u00a0\u00a0\u00a0 Rule 26(a) limits early disclosures to information that a party \u201cmay use to support its claims or defenses.\u201d[181]\u00a0 The 2006 Amendments did not expand its scope.\u00a0 Parties are not required to undertake an open-ended, costly, and ultimately premature effort to locate and review information.[182]<\/sup><\/sup><\/p>\n

[69]\u00a0\u00a0\u00a0\u00a0\u00a0 The issue arose at the 2004 Fordham Conference prior to the adoption of the amendments to Rule 26(a).\u00a0 While noting that the local rules in New Jersey and Wyoming mandated that counsel acquire information about client systems, one speaker noted that \u201cit may be that, for national rules, such a directive would be viewed as too intrusive.\u201d[183]<\/p>\n

[70]\u00a0\u00a0\u00a0\u00a0\u00a0 The former chair of the Standing Committee has also noted that a \u201clocal rule that require[s] parties to provide an information system \u2018map\u2019 at the Rule 26(f) conference\u201d would go \u201cbeyond [the] national rules.\u201d[184]\u00a0 Absent further amendments to the Federal Rules, therefore, local rules and guidelines should seek to accomplish these goals by voluntary, not mandatory, compliance.\u00a0 Under the case law, the act of requiring a party through its counsel to \u201cfurnish more information than is required\u201d is barred.[185]<\/p>\n

vii.\u00a0 Rule 502 Orders<\/b><\/h4>\n

[71]\u00a0\u00a0\u00a0\u00a0\u00a0 The 2006 Amendments included a \u201cclawback\u201d mechanism in Rules 26 and 45 to deal with post-production claims of privilege or work-product production, but made no attempt to establish the conditions under which \u201cwaiver\u201d by such production could occur.[186]\u00a0 In 2008, Congress enacted Federal Evidence Rule 502 (\u201cFRE 502\u201d),[187] limiting privilege waiver for \u201cinadvertent\u201d disclosures when the holder \u201ctook reasonable steps to prevent disclosure\u201d as well as prompt and reasonable steps to rectify the error.\u00a0 The Rule also authorized court-adopted agreements that bind parties and non-parties in federal and state cases, even over objection, to waiver-free production without proof of reasonable precautions.[188]<\/p>\n

[72]\u00a0\u00a0\u00a0\u00a0\u00a0 Surprisingly few districts have emphasized Rule 502 in local rules, guidelines, or amended forms.\u00a0 Many forms simply ask whether a court order \u201cwill be requested, either on stipulation or otherwise\u201d to address the manner in which ESI subject to claims or work product protection will be handled.[189]\u00a0 However, more recently adopted local rules and model protocols routinely deal with the issue.[190]\u00a0 It should also be addressed in any new standardized forms that the Administrative Office develops to supplement or replace Official Form 52.<\/p>\n

 <\/p>\n

IV.\u00a0 Conclusion<\/b><\/h3>\n

[73]\u00a0\u00a0\u00a0\u00a0\u00a0 There has been a healthy proliferation of local e-Discovery initiatives for use in district courts in the federal judicial system.\u00a0 There is no obvious pattern emerging as the dominant approach.<\/p>\n

[74]\u00a0\u00a0\u00a0\u00a0\u00a0 Unfortunately, there is very limited empirical evidence on which one can base a conclusion as to the most effective type of local initiative.\u00a0 The topic has received very little attention[191] and only the Seventh Circuit pilot program has attempted to survey its users.[192]\u00a0 Hopefully, other districts will put more effort into such surveys.\u00a0 As demonstrated by the evolution of the Delaware Default Standard, trial and error is useful.<\/p>\n

[75]\u00a0\u00a0\u00a0\u00a0\u00a0 There is substantial anecdotal evidence, however, that early attention to ESI can play an important role in reducing unnecessary disputes.[193]\u00a0 Certainly, that effort is preferable to ignoring potential disputes that can be avoided.\u00a0 The trick seems to be to find the right balance, blending a \u201clight touch\u201d with avoidance of unnecessary costs that produce no gain.\u00a0 Ultimately, however, the choice between doing nothing and jumping in with both feet is a matter of style that reflects the culture of the district and the degree to which it can be seen as appropriate.[194]<\/p>\n

[76]\u00a0\u00a0\u00a0\u00a0\u00a0 In the main, the ninety-four districts present the reassuring conclusion that the local rules and forms in current use are largely consistent with the 2006 Amendments.\u00a0 Moreover, the local initiatives do not appear to be the problem that the Standing Committee originally feared.[195]<\/sup><\/sup>\u00a0 There is no drumbeat of complaints, aside from one comment in an ABA journal,[196] that the diversity of local e-discovery procedure has had an adverse impact.\u00a0 There is no need for drastic action reining in local rulemaking, even if that were somehow possible.<\/p>\n

[77]\u00a0\u00a0\u00a0\u00a0\u00a0 However, as noted, procedural uniformity could be enhanced by converting some of the local initiatives into national rules.\u00a0 After six years, the tentative approach of the 2006 Amendments, can safely give way to a more confident and aggressive attempt to improve predictability and address the exploding costs of e-Discovery.<\/p>\n

 <\/p>\n

\n
\n

* Thomas Allman practiced law as a Partner at Taft, Stettinius & Hollister LLP in Cincinnati until joining BASF Corporation as Vice President, Litigation, in 1993.\u00a0 He retired in 2004 as Senior Vice President, General Counsel, and Chief Compliance Officer at BASF and thereafter spent three years as Special Counsel to Mayer Brown LLP in\u00a0Chicago.\u00a0 Mr. Allman is co-editor of the PLI Electronic Discovery Deskbook<\/i> and an Adjunct Professor at the University of Cincinnati College of Law.\u00a0 He is also Chair Emeritus and an active member of the Steering Committee of The Sedona Conference\u00ae Working Group 1 on Electronic Document Retention and Production.<\/p>\n

 <\/p>\n<\/div>\n

\n

[1] A. Leo Levin, Local Rules as Experiments: A Study in the Division of Power<\/i>, 139 U. Pa. L. Rev. 1567, 1579 (1991).<\/p>\n<\/div>\n

\n

[2] W.D. Wash. LCR 26 (2012).<\/p>\n<\/div>\n

\n

[3] The initiatives adopted in the Northern District of California blend general guidelines with Model orders designed to educate practitioners on court preferences.\u00a0 See<\/i> Court Adopts New E-Discovery Guidelines Effective November 27, 2012<\/i>, U.S. District Ct. N.D. Cal., <\/i>http:\/\/cand.uscourts.gov\/news\/101 (last visited Jan. 13, 2013).<\/p>\n<\/div>\n

\n

[4] See<\/i> Notice of Proposed Local Rule Changes and Opportunity for Public Comment – November 2012<\/i>, U.S. District Ct. D. Or., http:\/\/ord.uscourts.gov\/en\/proposed-local-rules\/notice-of-proposed-local-rule-changes-and-opportunity-for-public-comment-november-2012 (last updated Nov. 6, 2012).<\/p>\n<\/div>\n

\n

[5] See <\/i>generall
\ny<\/i> K&L Gates, Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues<\/i>, Electronic Discovery Law, <\/i>http:\/\/www.ediscoverylaw.com\/promo\/current-listing-of-states-that\/ (last visited Jan. 13, 2013) (noting that \u201cmany individual judges and magistrate judges have created their own forms or have crafted their own preferred protocols for e-discovery\u201d).<\/p>\n<\/div>\n

\n

[6] The focus here is on civil litigation, as distinct from criminal, bankruptcy and admiralty cases.<\/p>\n<\/div>\n

\n

[7] See generally<\/i> Letter from Chief Justice John Roberts to J. Dennis Hastert, Speaker of the House of Representatives (Apr. 12, 2006), available at<\/i> http:\/\/www.supremecourt.gov\/orders\/courtorders\/frcv06p.pdf (setting forth the amendments to the Federal Rules of Civil Procedure).<\/p>\n<\/div>\n

\n

[8] Fed. R. Civ. P. 83(a)(1); see also<\/i> 28 U.S.C. \u00a7 2071(a) (2006) (\u201c[A]ll courts established by Act of Congress may from time to time prescribe rules for the conduct of their business.\u00a0 Such rules shall be consistent with Acts of Congress and rules and practice prescribed under section 2072 . . . .\u201d).<\/p>\n<\/div>\n

\n

[9] N.D. Cal. Civil L.R. 1-2(b).<\/p>\n<\/div>\n

\n

[10] Many Local Rules authorize sanctions for their violation.\u00a0 See, e.g.<\/i>, <\/i>C.D. Cal. L.R. 83-7 (relating to \u201cviolation of or failure to conform to any of these Local Rules\u201d).<\/p>\n<\/div>\n

\n

[11] See <\/i>Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1363 (1st Cir. 1995) (\u201c[S]ilence in the federal rules should not be interpreted as a prohibition on local rule-making authority.\u201d).<\/p>\n<\/div>\n

\n

[12] 28 U.S.C. \u00a7 2071(b) (2006); see also <\/i>Fed. R. Civ. P. 83 (a)(1) (stating that rules shall be prescribed \u00a0\u201cafter giving appropriate public notice and an opportunity for comment\u201d).<\/p>\n<\/div>\n

\n

[13] The 1988 Judicial Improvements Act (\u201cJIA\u201d) added a requirement that the district courts use local advisory committees in enacting their rules.\u00a0 28 U.S.C. \u00a7 2077(b); see, e.g.<\/i>, U.S. District Ct. W.D. VA., Standing Order No. 2010-7, available at <\/i>http:\/\/www.vawd.uscourts.gov\/storders\/Establishment_of_Local_Rules_Advisory_Committee.pdf.<\/p>\n<\/div>\n

\n

[14] WESTLAW indexes Local Rules by state (e.g., insert \u201cKS-ST-ANN\u201d in \u201cSearch for database,\u201d then go to \u201cTable of Contents\u201d and select Local Rules for Civil or Bankruptcy; to retrieve individual Rules, insert \u201cKS-RULES\u201d in \u201cFind this document,\u201d scroll to bottom and insert the desired LR number).\u00a0 See also Court Websites<\/i>, U.S. Courts, http:\/\/www.uscourts.gov\/Court_Locator\/CourtWebsites.aspx (last visited Jan. 13, 2013) (linking to the district courts\u2019 websites).<\/p>\n<\/div>\n

\n

[15] See <\/i>Fed. R. Civ. P. 83; see also <\/i>Memorandum from Leonidas Mecham, Director, Administrative Office of the United States Courts, to the Chief Judges and Clerks of the United States District Courts and the United Sates Bankruptcy Courts (Apr. 29, 1996), available at <\/i>http:\/\/www.uscourts.gov\/uscourts\/RulesAndPolicies\/rules\/Local_Rules_Uniform_Numbering.pdf.<\/p>\n<\/div>\n

\n

[16] 130 S. Ct. 705, 710 (2010) (concluding that \u201cthe District Court likely violated a federal statute in revising its local rules\u201d by failing to give public notice and an opportunity for comment under 28 US.C. \u00a7 2071(b) and Rule 83(a)).<\/p>\n<\/div>\n

\n

[17] The Northern District of Texas has a pithy set of Local Rules, but the Western District of Wisconsin sets the record: it has only five Local Rules and eight Administrative Orders.\u00a0 Compare <\/i>N.D. Tex. L.R., available at <\/i>http:\/\/www.txnd.uscourts.gov\/rules\/localrules\/lr_civil.html, with <\/i>W.D. Wis. \u00a0L.R., available at <\/i>http:\/\/www.wiwd.uscourts.gov\/local-rules-and-administrative-orders.<\/p>\n<\/div>\n

\n

[18] See<\/i> D. Kan. Rule 83.1.2 (\u201cBy vote of a majority of the judges, the court may from time to time issue standing orders dealing with administrative concerns or with matters of temporary or local significance.\u201d).<\/p>\n<\/div>\n

\n

[19] See, e.g.<\/i>, Local Rules<\/i>, U.S. District Ct. D. Kan., http:\/\/www.ksd.uscourts.gov\/flex\/?fc=1 (last visited Jan. 13, 2013).<\/p>\n<\/div>\n

\n

[20] See In re<\/i> Dorner, 343 F.3d 910, 913 (7th Cir. 2003).<\/p>\n<\/div>\n

\n

[21] See <\/i>Comm. on Rules of Practice and Procedure, Report and Recommended Guidelines On Standing Orders In District and Bankruptcy Courts (2009), available at <\/i>http:\/\/www.uscourts.gov\/uscourts\/RulesAndPolicies\/rules\/jc09-2009\/2009-09-Appendix-F.pdf.<\/p>\n<\/div>\n

\n

[22] See <\/i>Fed. R. Civ. P. 83(b).<\/p>\n<\/div>\n

\n

[23] See, e.g.<\/i>, Practice Guidelines for Judge Robert H. Cleland<\/i>, U.S. District Ct. E.D. Mich., http:\/\/www.mied.uscourts.gov\/judges\/guidelines\/index.cfm?judgeID=12.<\/p>\n<\/div>\n

\n

[24] The Eastern District of Pennsylvania does a particularly good job in making them available.\u00a0 See<\/i> Judges\u2019 Procedures<\/i>, U.S. District Ct. E.D. Pa., http:\/\/www.paed.uscourts.gov\/us08001.asp (last visited Jan. 13, 2012).<\/p>\n<\/div>\n

\n

[25] See In re<\/i> Atl. Pipe Corp., 304 F.3d 135, 145 (1st Cir. 2002) (finding it within the inherent power of the district court to order non-binding mediation, despite the lack of a local rule on the topic).<\/p>\n<\/div>\n

\n

[26] See <\/i>Glenn S. Koppel, Toward A New Federalism in State Civil Justice: Developing a Uniform Code of State Civil Procedure Through a Collaborative Rule-Making Process<\/i>, 58 Vand. L. Rev. 1167, 1180 (2005) (observing that \u201cthe proliferation of local rule-making as a result of the \u2018exercise of individualized discretion\u2019 by federal judges\u201d significantly contributes to disuniformity among local discovery practices); see also<\/i> Richard Marcus, Confessions of a Federal \u201cBureaucrat\u201d: The Possibilities of Perfecting Procedural Reform, <\/i>35 W. St. U. L. Rev. 103, 119 (2007) (suggesting that procedural outcomes are unlikely to be uniform because \u201clocal (and individual) variation is quite likely among American judges\u201d).<\/p>\n<\/div>\n

\n

[27] See<\/i> Anne Shea Gaza & Jason J. Rawnsley, Local Practices for Electronic Discovery<\/i>, Fed. Law., Feb. 2011, at 32. <\/i><\/p>\n<\/div>\n

\n

[28] In many Districts, it can be a real challenge to locate the forms; however, the Southern District of West Virginia\u2019s website serves as a good example of a jurisdiction providing easy online access to the forms referenced in its local rules.\u00a0 See Forms Referenced in the Local Rules<\/i>, U.S. District Ct. S.D. W. Va., http:\/\/www.wvsd.uscourts.gov\/rules\/local\/forms.html (last visited Jan. 13, 2012).<\/p>\n<\/div>\n

\n

[29] See Forms & Fees<\/i>, U.S. Courts, http:\/\/www.uscourts.gov\/FormsAndFees.aspx (last visited Jan. 13, 2012) (providing a general index of AO forms).<\/p>\n<\/div>\n

\n

[30] See, e.g.<\/i>, Rule 16(b) Scheduling Order, Sample Form 21<\/i>, Fed. Jud. Center, http:\/\/www.fjc.gov\/public\/pdf.nsf\/lookup\/CivLit2D_Form21.pdf\/$file\/CivLit2D_Form21.pdf <\/i>(last visited Jan. 13, 2013); see also Civil Litigation Management Manual, Second Edition<\/i>, Fed. Jud. Center, http:\/\/www.fjc.gov\/public\/home.nsf\/pages\/1245 (last visited Jan. 21, 2013) (providing links to the Civil Litigation Management Manual and sample forms).<\/p>\n<\/div>\n

\n

[31] Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1363 (1st Cir. 1995).<\/p>\n<\/div>\n

\n

[32] See, e.g.<\/i>, Miss. Pub. Corp. v. Murphee, 326 U.S. 438, 444 (1946) (noting that construction by the Advisory Committee is of weight in assessing \u201crules formulated and recommended\u201d by them).\u00a0 But see, e.g.<\/i>, Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485, 2598-99 (2010) (Scalia, J., concurring) (asserting the primacy of textual comparisons).<\/p>\n<\/div>\n

\n

[33] 413 U.S. 149, 163-64 (1973) (denying mandamus with regard to local rule permitting juries of six in civil cases where the rule was not in conflict with the applicable federal rule).\u00a0 At least one commentator criticizes this use of inherent power to \u201cbypass\u201d local rulemaking as \u201ctroublesome\u201d because it \u201cexacerbates procedural di
\nsuniformity in the federal system.\u201d\u00a0 See <\/i>Samuel P. Jordan, Situating Inherent Power Within a Rules Regime<\/i>, 87 Denv. U. L. Rev. 311, 318 (2010).<\/p>\n<\/div>\n

\n

[34] See<\/i> Charles Alan Wright et al., 12 Federal Practice and Procedure \u00a7 3152 (2d ed. 1997) (stating that the Civil Justice Reform Act of 1990 \u201cclouded the evaluation of local rules because this legislation arguably authorized district courts to disregard Civil Rules in their plans for reducing cost and delay\u201d).<\/p>\n<\/div>\n

\n

[35] Differentiated case management involving \u201ctracks\u201d remains a part of the Local Rules of many courts.\u00a0 See, e.g.<\/i>, Robert M. Landis et al., Civil Justice Expense and Delay Reduction Plan 5-8 (1991), available at<\/i> http:\/\/www.paed.uscourts.gov\/documents\/cjraplan\/cjraplan.pdf; see also <\/i>E.D. Pa. L.R.C.P. 1.1.1(f) (citing an Order adopting the Civil Justice Expense and Delay Reduction Plan).<\/p>\n<\/div>\n

\n

[36] See, e.g.<\/i>, D. Ariz. LRCiv 83.9(a)(2)(A) (assigning duty to assure \u201cconsistency\u201d to Rules of Practice Advisory Committee).<\/p>\n<\/div>\n

\n

[37] See <\/i>28 U.S.C. \u00a7 2071(d) (2006); see also<\/i> Fed. R. Civ. P. 83(a).<\/p>\n<\/div>\n

\n

[38] 28 U.S.C. \u00a7 332(d)(4); see also<\/i> 28 U.S.C. \u00a7 331.<\/p>\n<\/div>\n

\n

[39] See <\/i>Myron J. Bromberg & Jonathan M. Korn, Individual Judges\u2019 Practices: An Inadvertent Subversion of the Federal Rules of Civil Procedure<\/i>, 68 St. John\u2019s L. Rev. 1, 9 (1994).<\/p>\n<\/div>\n

\n

[40] The cover page of the Local Rules effective in March, 2012 in the Eastern and Southern Districts of New York bear the legend \u201c[a]pproved by the Judicial Council of the Second Circuit.\u201d\u00a0 Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, U.S. District Ct. E.D.N.Y. 1 (Mar. 2, 2012), available at<\/i> http:\/\/www.nyed.uscourts.gov\/sites\/default\/files\/local_rules\/localrules.pdf.<\/p>\n<\/div>\n

\n

[41] Standing Comm. on Rules of Practice & Procedure, Report on Local Rules 1 (2004), available at<\/i> http:\/\/www.uscourts.gov\/uscourts\/RulesAndPolicies\/rules\/Final_Local_Rules_Report_March_%202004.pdf.<\/p>\n<\/div>\n

\n

[42] See District Courts Selected for Patent Pilot Program<\/i>, U.S. Courts (June 7, 2011), http:\/\/www.uscourts.gov\/News\/NewsView\/11-06-07\/District_Courts_Selected_for_Patent_Pilot_Program.aspx.<\/p>\n<\/div>\n

\n

[43] See<\/i> J. John Koeltl\u00a0 et al., Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action 11 (2011), available at<\/i> http:\/\/www.fjc.gov\/public\/pdf.nsf\/lookup\/DiscEmpl.pdf\/$file\/DiscEmpl.pdf (recommending adoption of District wide Standing Order whose requirements \u201csupersedes\u201d obligations to disclose under F.R.C.P. 26(a)(1)).<\/p>\n<\/div>\n

\n

[44] See <\/i>Proposed D. Or. LR 26-7 (proposed Nov. 2012), available at<\/i> http:\/\/ord.uscourts.gov\/index.php?option=com_phocadownload&view=category&download=298%3Anovember-2012-proposed-new-and-amended-rules&id=60%3A2013-proposed-local-rules&lang=en.<\/p>\n<\/div>\n

\n

[45] J. Edward T. Gignoux et al., Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Rules Governing Section 2254 Cases in the United States District Courts, and Rules Governing Section 2255 Proceedings in the United States District Courts<\/i>, 98 F.R.D. 337, 371 (1983) (\u201cWhen authorized by the judicial council, a district court may adopt on an experimental basis for no longer than two years a local rule that may not be challenged for inconsistency with these rules, after giving appropriate public notice and an opportunity to comment.\u201d).<\/p>\n<\/div>\n

\n

[46] J. Robert E. Keeton et al., Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and the Federal Rules of Evidence<\/i>, 137 F.R.D. 53, 153. (1991) (recommending that an experimental rule be \u201climited in its period of effectiveness to five years or less\u201d).<\/p>\n<\/div>\n

\n

[47] D.C. COLO. LCivR 1.1(I), available at<\/i> http:\/\/www.cod.uscourts.gov\/Portals\/0\/Documents\/LocalRules\/2012-LR\/2012-Approved-Local-Rules.pdf.<\/p>\n<\/div>\n

\n

[48] See <\/i>Charles Alan Wright et al., supra<\/i> note 34, at \u00a7 3153 (collecting examples of discovery innovations adopted in Federal Rules 33 and 37(a) that surfaced first in local rules).<\/p>\n<\/div>\n

\n

[49] Lauren Robel, Fractured Procedure: The Civil Justice Reform Act of 1990<\/i>, 46 Stan. L. Rev. 1447, 1484 (1994) (\u201cLocal court tinkering with the Federal Rules is rarely inspired by the disutility of a Rule under local conditions.\u00a0 Rather, it is inspired by a belief that the rulemakers got it wrong.\u201d).<\/p>\n<\/div>\n

\n

[50] Levin, supra<\/i> note 1, at 1579 (\u201cLocal rules offer the most expeditious means of experimenting.\u201d).<\/p>\n<\/div>\n

\n

[51] See id.<\/i> at 1583 (\u201cConsistency with the national rules was not to be required of rules that were avowedly experimental.\u201d).<\/p>\n<\/div>\n

\n

[52] See<\/i> Thomas Y. Allman, The Need for Federal Standards Regarding Electronic Discovery<\/i>, 68 Def. Couns. J. 206, 208 (2001).<\/p>\n<\/div>\n

\n

[53] See id.<\/i> (stating that \u201camendments to the Federal Rules are necessary\u201d).<\/p>\n<\/div>\n

\n

[54] An initial version was issued in the summer of 2004 for Public Comment.\u00a0 See<\/i> Advisory Comm. on Fed. Rules of Civil Procedure, Revised Report Of The Civil Rules Advisory Committee (2004), available at<\/i> http:\/\/www.uscourts.gov\/uscourts\/RulesAndPolicies\/rules\/comment2005\/CVAug04.pdf.<\/p>\n<\/div>\n

\n

[55] See <\/i>Adoption and Amendment to Civil Rules, 234 F.R.D. 219, 279, 312-13 (2006).<\/p>\n<\/div>\n

\n

[56] E.D. Ark. & W.D. Ark . L.R. 26.1 (whether anticipated requests exceeded \u201creasonably available [information] in the ordinary course of business;\u201d if so, the costs of going further; the format and media of production; whether reasonable preservation measures had been taken to preserve; any other problems).<\/p>\n<\/div>\n

\n

[57] See <\/i>Panel Discussions, Panel Five: E-Discovery Under State Court Rules and United States District Court Rules<\/i>, 73 Fordham L. Rev. 85, 93-94 (2004) (apart from issue of whether or not the Arkansas Rule produces \u201cbalkanization of the Federal Rules through Local Rules\u201d).<\/p>\n<\/div>\n

\n

[58] D. Wyo. U.S.D.C.L.R. 26.1(d)(1) & App. D (requiring discussion of listed aspects of\u00a0 \u201ccomputer data discovery\u201d).<\/p>\n<\/div>\n

\n

[59] D.N.J. L.Civ.R. 26.1(b)(2), (d) (listing required topics for Rule 26(f) discovery plan and imposing duty to \u201cinvestigate and disclose\u201d on counsel).<\/p>\n<\/div>\n

\n

[60] M.D. Pa. L.R. 26.1 (duty to investigate by attorneys; also emphasizing email issues such as search protocols and the need to restore deleted information from backups or archives; advocating allocation of costs for disclosures \u201cbeyond what is reasonable available in the ordinary course of business\u201d).<\/p>\n<\/div>\n

\n

[61] The Middle District of Florida also issued a handbook that references electronic discovery issues.\u00a0 See <\/i>U.S. Dist. Court Middle Dist. Fla., Middle District Discovery 21-22 (2001), available at <\/i>\u00a0http:\/\/www.flmd.uscourts.gov\/Forms\/Civil\/Discovery_Practice_Manual.pdf.<\/p>\n<\/div>\n

\n

[62] The District of Delaware adopted major revisions in 2011, reacting to concerns that the Default Standards \u201c[was] basic, a bit scattershot, and meant to be a punishment to parties who failed to cooperate.\u201d\u00a0 Delaware District Court\u2019s Revised Default eDiscovery Standard is Horrible-Electronic Discovery<\/i>, ElectronicDiscovery (May 7, 2012), http:\/\/electronicdiscovery.info\/delaware-district-courts-revised-default-ediscovery-standard-is-horrible-electronic-discovery\/.<\/p>\n<\/div>\n

\n

[63] N.D. Ohio LR 16.3 & App. K.<\/p>\n<\/div>\n

\n

[64] See <\/i>Administrative Order No. 174 Regarding Default Standard for Discovery of Electronically Stored Information (M.D. Tenn., July 9, 2007), available at<\/i> http:\/\/www.tnmd.uscourts.gov\/files\/AO_174_E-Discovery.pdf.<\/p>\n<\/div>\n

\n

[65] W.D. Tenn. LR 26.1.<\/p>\n<\/div>\n

\n

[66] See <\/i>Thomas
\n Y. Allman, Addressing State E-Discovery Issues Through Rulemaking: The Case for Adopting the 2006 Federal Amendments<\/i>, 74 Def. Couns. J. 233, 239 (2007).<\/p>\n<\/div>\n

\n

[67] See, e.g.<\/i>, D. Vt. L.R. 26(a)(4)(B) (\u201cdeadlines for discovery of [ESI]\u201d).<\/p>\n<\/div>\n

\n

[68] See, e.g.<\/i>, E.D. Wis. L.R. 26(a)(1)-(5) (\u201creasonable accessibility\u201d and burdens and expense; format and media for production; measures taken to preserve; procedures for asserting post-production claims of privilege or work product; other issues relating to e-discovery).<\/p>\n<\/div>\n

\n

[69] See<\/i> D. Miss. L.U.Civ.R. 26(e)(2)(B)(i)-(xi) (providing a comprehensive list of ESI related topics for discussion by parties for the Northern and Southern Districts of Mississippi).\u00a0 Alone among the studied local rules, D. Miss. L.U.Civ.R. 45(d) (Non-Party ESI) also extends the duty to meet and confer to non-parties (or their counsel, if represented) when a subpoena duces tecum is issued for ESI.<\/p>\n<\/div>\n

\n

[70] See <\/i>W.D. Pa. LCvR 26.2 (requiring designation of a \u201cresource\u201d person, and speaking of allocation of \u201ccosts of preservation [and] production\u201d of ESI).<\/p>\n<\/div>\n

\n

[71] See<\/i> W.D.N.Y.\u00a0 L.R. Civ. P. 26(f)(1)-(6) (requiring phased search for ESI not reasonably accessible with possible payment of costs of \u201csearch, retrieval, review, and production;\u201d specifying that metadata need not be produced absent agreement or good cause; providing for production as imaged files (PDF or TIFF) absent particularized need for native production).<\/p>\n<\/div>\n

\n

[72] See, e.g.<\/i>, D. Conn. Civ. Report Form 26(f), available at <\/i>http:\/\/www.ctd.uscourts.gov\/sites\/default\/files\/local_rules\/Revised%20Local%20Rules%20%2011-15-2012.pdf (included as Appendix to Local Rules).<\/p>\n<\/div>\n

\n

[73] See, e.g.<\/i>, D. Neb. Rule 26(f) Report \u00a0\u00b6 IV(E)(3)(b)(i)-(xi), available at<\/i> http:\/\/www.ned.uscourts.gov\/internetDocs\/forms\/form35.pdf (listing 11 topics which parties have discussed \u00a0and requiring parties to either agree that no \u201cspecial\u201d provisions are required or, if they are, to list the agreements to be followed).<\/p>\n<\/div>\n

\n

[74] The Model Joint Electronic Discovery Submission and Order used in the S.D.N.Y. Pilot project discussed below is a classic example of this approach.\u00a0 See infra <\/i>note 80.<\/p>\n<\/div>\n

\n

[75] See<\/i> Guidelines for Discovery of Electronically Stored Information (ESI)<\/i>, U.S. District Ct. D. Kan., http:\/\/www.ksd.uscourts.gov\/wp-content\/uploads\/2010\/03\/electronicdiscoveryguidelines.pdf (last visited Jan. 23, 2013).<\/p>\n<\/div>\n

\n

[76] The Sedona Principles Addressing Electronic Document Production<\/i>, U.S. Dist. Ct. C.D. Ill., http:\/\/www.ilcd.uscourts.gov\/sites\/ilcd\/files\/local_rules\/Sedona%20Principles.pdf (last visited Jan. 23, 2013); Local Rules and Orders<\/i>, U.S. District Ct. C.D. Ill., http:\/\/www.ilcd.uscourts.gov\/court-info\/local-rules-and-orders\/local-rules (last visited Jan. 12, 2013).<\/p>\n<\/div>\n

\n

[77] Suggested Protocol for Discovery of Electronically Stored Information<\/i>, U.S. District Ct. D. Md., http:\/\/www.mdd.uscourts.gov\/news\/news\/esiprotocol.pdf [hereinafter D. Md. Suggested Protocol<\/i>] (last visited Jan. 23, 2013).\u00a0 The Protocol was applied by order in O\u2019Bar v. Lowe\u2019s Home Ctrs., No. 5:04-cv-00019-W, 2007 WL 1299180, at *4 n.2 (W.D.N.C. May 2, 2007).<\/p>\n<\/div>\n

\n

[78] See <\/i>Mezu v. Morgan State Univ., 269 F.R.D. 565, 570-71 (D. Md. 2010) (implying that violations of e-Discovery Protocol will result in sanctions that may include case-dispositive sanctions including contempt of court).<\/p>\n<\/div>\n

\n

[79] See, e.g.<\/i>, Pretrial Order No. 1, available at <\/i>http:\/\/www.paed.uscourts.gov\/documents\/procedures\/shapole.pdf.<\/p>\n<\/div>\n

\n

[80] See <\/i>Judicial Improvements Comm., Report On Pilot Project Regarding Case Management Techniques For Complex Civil Cases 18-29 (Oct. 2011), available at <\/i>http:\/\/www.nysd.uscourts.gov\/rules\/Complex_Civil_Rules_Pilot.pdf.<\/p>\n<\/div>\n

\n

[81] See <\/i>D. Md. LAR 802(h).<\/p>\n<\/div>\n

\n

[82] See <\/i>D. Mass. LR 16.6 (7)(a)-(d).<\/p>\n<\/div>\n

\n

[83] Fed. Circuit Advisory Council, Model Order Regarding E-Discovery in Patent Cases (2011) [hereinafter Model Patent Order], available at <\/i>http:\/\/www.cafc.uscourts.gov\/images\/stories\/the-court\/Ediscovery_Model_Order.pdf.<\/p>\n<\/div>\n

\n

[84] See <\/i>Proposed D. Or. LR 26-6 (proposed Nov. 2012), available at <\/i>http:\/\/ord.uscourts.gov\/index.php?option=com_phocadownload&view=category&download=298%3Anovember-2012-proposed-new-and-amended-rules&id=60%3A2013-proposed-local-rules&lang=en.<\/p>\n<\/div>\n

\n

[85] Statement of Purpose and Preparation of Principles<\/i>, Seventh Circuit Electronic Discovery Pilot Program, http:\/\/www.discoverypilot.com\/ (last visited Jan. 12, 2013).<\/p>\n<\/div>\n

\n

[86] Id.<\/i> (providing links to Principles and to Model Standing Order).<\/p>\n<\/div>\n

\n

[87] Principles Relating to the Discovery of Electronically Stored Information<\/i>, Seventh Circuit Electronic Discovery Pilot Program, 3-4 (Aug. 1, 2010), http:\/\/www.discoverypilot.com\/sites\/default\/files\/Principles8_10.pdf [hereinafter Seventh Circuit Principles<\/i>].<\/p>\n<\/div>\n

\n

[88] See <\/i>The Sedona Conference\u00ae<\/sup><\/i>, The Sedona Conference<\/i> Commentary on Proportionality in Electronic Discovery<\/i>, 11 Sedona Conf. J. 289, 292 (2010).<\/p>\n<\/div>\n

\n

[89] Seventh Circuit Principles<\/i>, supra <\/i>note 87, at 4; see also <\/i>Thomas Y. Allman, Preservation Rulemaking After the 2010 Litigation Conference<\/i>, 11 Sedona Conf. J. 217, 218-19 (2010).<\/p>\n<\/div>\n

\n

[90] See <\/i>The Sedona Conference\u00ae<\/sup>, The Sedona Principles: Second Edition Best Practices Recommendations & Principles for Addressing Electronic Document Production 28 (Jonathan M. Redgrave et al. eds., 2d ed. 2007), available at <\/i>http:\/\/www.sos.mt.gov\/Records\/committees\/erim_resources\/A%20-%20Sedona%20Principles%20Second%20Edition.pdf (\u201c[I]t is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant [ESI]\u201d); id.<\/i> at 45 (Noting that the primary source should be \u201cactive data\u201d absent demonstrable \u201cneed and relevance that outweigh the costs and burdens\u201d including the \u201cdisruption of business and [IT] activities\u201d); id.<\/i> at 49 (Stating that there is no need to preserve or produce \u201cdeleted, shadowed, fragmented, or residual\u201d ESI).<\/p>\n<\/div>\n

\n

[91] See <\/i>Proposed N.D. Ill. LPR ESI 2.3(d) (proposed Sept. 27, 2012), available at <\/i>http:\/\/www.ilnd.uscourts.gov\/_assets\/_documents\/Rules\/LPR12.pdf.<\/p>\n<\/div>\n

\n

[92] D. Del. Default Standard For Discovery, Including Discovery of Electronically Stored Information (revised Dec. 8, 2011), available at<\/i> http:\/\/www.ded.uscourts.gov\/sites\/default\/files\/Chambers\/SLR\/Misc\/EDiscov.pdf [hereinafter D. Del. Default Standard].<\/p>\n<\/div>\n

\n

[93] Id<\/i>. at Schedule A.<\/p>\n<\/div>\n

\n

[94] W.D. Wash. Model Protocol For Discovery Of Electronically Stored Information in Civil Litigation \u00a7 II(C)(2), available at <\/i>http:\/\/www.wawd.uscourts.gov\/sites\/wawd\/files\/61412ModeleDiscoveryProtocol.pdf [hereinafter W.D. Wash. Model Protocol] (listing categories of ESI which \u201cneed not be preserved\u201d absent a showing of good cause by the requesting party).<\/p>\n<\/div>\n

\n

[95] See <\/i>Model Patent Order, supra <\/i>note 83, at \u00b6\u00b6 10-11 (limiting email production requests \u201cto a total of five custodians per producing party\u201d and shifting costs for additional requests; also limiting \u201ccontested requests\u201d for additional search terms under same conditions).<\/p>\n<\/div>\n

\n

[96] See<\/i> E.D. Tex. Local Civil Rules App. P. \u00b6\u00b6 8-9, available at <\/i>http:\/\/www.txed.uscourts.gov\/page1.shtml?location=rules (limiting discovery to eight custodians and ten search terms).<\/p>\n<\/div>\n

\n

[97] See<\/i> Proposed D. Or. LR 26-6 (proposed Nov. 2012), available at <\/i>http:\/\/ord.uscourts.gov\/en\/proposed-local-rules\/notice-of-proposed-local-r
\nule-changes-and-opportunity-for-public-comment-november-2012 <\/i>\u00a0(adopting the Model Order \u201cin all cases in which a claim of patent infringement is asserted\u201d).<\/p>\n<\/div>\n

\n

[98] See <\/i>Moze Cowper & John Rosenthal, Not Your Mother’s Rule 26(f) Conference Anymore<\/i>, 8 Sedona Conf. J. 261, 262 (2007).<\/p>\n<\/div>\n

\n

[99] See <\/i>Steven S. Gensler, Some Thoughts on the Lawyer\u2019s E-Volving Duties in Discovery<\/i>, 36 N. Ky. L. Rev. 521, 525-38 (2009) (describing the \u201cfront-loading\u201d effect of the 2006 Amendments).<\/p>\n<\/div>\n

\n

[100] See <\/i>also <\/i>K&L Gates, supra<\/i> note 5 (listing e-discovery initiatives in effect as of late 2011).\u00a0 While there is evidence of activity in most major urban districts, it is not evident in those which include Cincinnati, Dallas, Detroit, the District of Columbia, Los Angeles, Miami, New Orleans, San Diego, or St. Louis.<\/p>\n<\/div>\n

\n

[101] See, e.g<\/i>., C.D. Cal. L.R. 26-1 (\u201cAt the conference of parties held pursuant to F.R.Civ.P. 26(f), the parties shall discuss the following matters in addition to those noted in F.R.Civ.P. 26(f)\u201d [without mention of ESI-related issues]).<\/p>\n<\/div>\n

\n

[102] See generally<\/i> K&L Gates, supra<\/i> note 5.<\/p>\n<\/div>\n

\n

[103] See <\/i>S.D. Fla. L.R. 26.1; LR 16.2, NDGa; E.D.Mo. L.R. 26-3.01; M.D.N.C. LR 16.1; W.D.N.C. LCvR 16.1; D.P.R. L.Cv.R. 16; D. Vt. L.R. 26.<\/p>\n<\/div>\n

\n

[104] See <\/i>E.D. & W.D. Ark. R. 26.1(4)(a)-(e); D. Mass\u00a0 LR 16.6(A)(7)(a)-(d).;\u00a0 D. Miss. L.U.Civ.R. 26(e)(2)(B);\u00a0 D.N.J. L.Civ.R. 26.1(d); W.D.N.Y. L.R. Civ. P. 26(f); M.D. Pa. R. 26.1(c); W.D. Pa. LCvR 26.2; Local Rules W.D. Wash. CR 26(f)(1)(I)-(J); E.D. Wis. L.R. 26(a)(1)-(5); D. Wyo. U.S.D.C.L.R. 26.1(e).<\/p>\n<\/div>\n

\n

[105] N.D. Cal., [Model] Stipulated Order Re: Discovery of Electronically Stored Information for Standard Litigation, available at<\/i> http:\/\/www.cand.uscourts.gov\/eDiscoveryGuidelines; N.D. Ill., General Order 09-0022, available at<\/i> http:\/\/www.ilnd.uscourts.gov\/home\/_assets\/_documents\/Rules\/09022%20Patent%20Rules.pdf; D. Del. Default Standard, supra <\/i>note 92; S.D.N.Y. Standing Order M10-468, available at <\/i>http:\/\/www.nysd.uscourts.gov\/rules\/Complex_Civil_Rules_Pilot.pdf; N.D. Ohio LR App. K; D. Or., Model E-Discovery Order, available at <\/i>http:\/\/www.ord.uscourts.gov\/en\/proposed-local-rules\/notice-of-proposed-local-rule-changes-and-opportunity-for-public-comment-november-2012; Administrative Order No. 174 Regarding Default Standard for Discovery of Electronically Stored Information (M.D. Tenn., July 9, 2007), available at<\/i> http:\/\/www.tnmd.uscourts.gov\/files\/AO_174_E-Discovery.pdf; W.D. Tenn. LR 26.1; E.D Tex. Local Civil Rules App. P.<\/p>\n<\/div>\n

\n

[106] The Seventh Circuit Pilot Project and the Federal Circuit Model Order advocate use of this approach in individual cases, a topic beyond the scope of this analysis.\u00a0 See Statement of Purpose and Preparation of Principles<\/i>, supra <\/i>note 85; Model Patent Order, supra <\/i>note 83.<\/p>\n<\/div>\n

\n

[107] N.D. Cal., Guidelines for the Discovery of Electronically Stored Information, available at <\/i>http:\/\/www.cand.uscourts.gov\/eDiscoveryGuidelines; S.D. Fla. L.R. App. A; D. Kan., Guidelines for Discovery of Electronically Stored Information, available at <\/i>http:\/\/www.ksd.uscourts.gov\/wp-content\/uploads\/2010\/03\/electronicdiscoveryguidelines.pdf (last visited Jan. 24, 2013); D. Md. Suggested Protocol<\/i>, supra <\/i>note 77; Local Rules<\/i>, U.S. District Ct. C.D. Ill., http:\/\/www.ilcd.uscourts.gov\/court-info\/local-rules-and-orders\/local-rules (last visited Jan. 24, 2013) (J. John A. Gorman adopting the Sedona Principles).<\/p>\n<\/div>\n

\n

[108] A Rule 84 Subcommittee of the Civil Rules Committee is considering (as of November, 2012) recommending the abrogation of Rule 84 (and most Official forms) in deference to the forms issued by the Administrative Office.\u00a0 See <\/i>Advisory Committee on Civ. Rules, Reporter\u2019s Memorandum Regarding Rule 84<\/i>, in <\/i>Meeting on November 1\u20112, 2012 of the Advisory Committee on Civil Rules 407, 407-25 (2012), available at <\/i>http:\/\/www.uscourts.gov\/uscourts\/RulesAndPolicies\/rules\/Agenda%20Books\/Civil\/CV2012-10.pdf.\u00a0 The forms available on the AO website do not relate to the Rule 26(f) and Rule 16(b) processes. \u00a0See Courts Forms by Number<\/i>, U.S. Courts, http:\/\/www.uscourts.gov\/FormsAndFees\/Forms\/CourtForms.aspx (last visited Jan. 24, 2012).<\/p>\n<\/div>\n

\n

[109] See <\/i>Emery G. Lee III, Fed. Judicial Ctr., Early Stages of Litigation Attorney Survey 5 (2012), available at <\/i>http:\/\/www.fjc.gov\/public\/pdf.nsf\/lookup\/leeearly.pdf\/$file\/leeearly.pdf (\u201c[J]ust 25% of all respondents discussed electronic discovery issues at a Rule 26(f) meeting, and only 13% of all respondents discussed preservation obligations.\u201d).<\/p>\n<\/div>\n

\n

[110] See, e.g.<\/i>, Christopher Boehning & Daniel J. Toal, Are Meet, Confer Efforts Doing More Harm Than Good?<\/i>, N.Y. L.J., July 31, 2012 (\u201cForcing lawyers to discuss in detail issues they would otherwise skip over at the outset of a litigation may not be the best way to reduce disagreement and foster cooperation.\u201d).<\/p>\n<\/div>\n

\n

[111] See generally<\/i> Douglas L. Rogers, A Search for Balance in the Discovery of ESI Since December 1, 2006<\/i>, 14 Rich. J.L. & Tech. 8, at \u00b6 5 (2008), http:\/\/jolt.richmond.edu\/v14i3\/article8.pdf (pointing out the common law obligations to preserve information, which push parties to make unilateral preservation decisions when litigation is \u201creasonably likely\u201d).<\/p>\n<\/div>\n

\n

[112] See<\/i> Gensler, supra <\/i>note 99, at 536 (\u201c[L]awyers will spend many hours engaging in the range of activities contemplated by the Advisory Committee Note to Rules 26(f) and recommended by the Sedona Conference. . . . [and] parties will also incur internal costs . . . to assist the lawyers . . . .\u201d).<\/p>\n<\/div>\n

\n

[113] See <\/i>John H. Langbein, The Disappearance of Civil Trial in the United States<\/i>, 122 Yale L.J. 522, 524 (2012) (\u201cThus, in American civil justice, we have gone from a world in which trials, typically jury trials, were routine, to a world in which trials have become \u2018vanishingly rare.\u2019\u201d).<\/p>\n<\/div>\n

\n

[114] See <\/i>Thomas Y. Allman, Managing Preservation Obligations After the 2006 Federal E-Discovery Amendments<\/i>, 13 Rich. J. L. & Tech. 9, at \u00b6\u00b6 12-13 (2007), http:\/\/jolt.richmond.edu\/v13i3\/article9.pdf (the Committee was urged to \u201cdeal directly with the ambiguities of preservation obligations in the ESI context,\u201d but did not do so).<\/p>\n<\/div>\n

\n

[115] See <\/i>Fed. R. Civ. P. 26(b)(2)(B).<\/p>\n<\/div>\n

\n

[116] See <\/i>Adoption and Amendment to Civil Rules, 234 F.R.D. 219, 331, 336-37 (2006)(listing \u201c[e]xamples [of inaccessible sources] from current technology\u201d whose preservation and production would not normally be warranted).<\/p>\n<\/div>\n

\n

[117] Seventh Circuit Principles<\/i>, supra <\/i>note 87; see also<\/i> Final Report on Phase Two<\/i>, Seventh Circuit Electronic Discovery Pilot Program, 9 (May 2012), http:\/\/www.discoverypilot.com\/sites\/default\/files\/Phase-Two-Final-Report-Appendix.pdf.<\/p>\n<\/div>\n

\n

[118] Seventh Circuit Principles<\/i>, supra <\/i>note 87 (\u201cdeleted\u201d or \u201cunallocated\u201d data on hard drives, RAM, temporary files, frequently updated metadata, duplicative backup data and other forms of ESI requiring \u201cextraordinary affirmative measures\u201d).<\/p>\n<\/div>\n

\n

[119] D. Del. Default Standard, supra <\/i>note 92, at \u00b6 1(c).<\/p>\n<\/div>\n

\n

[120] See<\/i> W.D. Wash. Model Protocol, supra <\/i>note 94, at \u00b6 C(2)(a)-(h) (listing types of ESI similar to those in the Default Standard).<\/p>\n<\/div>\n

\n

[121] See <\/i>Proposed N.D. Ill. LPR ESI 2.3(d) (proposed Sept. 27, 2012), available at <\/i>http:\/\/www.ilnd.uscourts.gov\/_assets\/_documents\/Rules\/LPR12.pdf.<\/p>\n<\/div>\n

\n

[122] See <\/i>Chad Everingham, Practical E-Discovery Issues<\/i>, 51 The Advoc. 37, 37 (2010) (recommending stipulation under which
\n parties provide a list of no more than 15 custodians, which can be modified\u00a0 by the other side and custodians added by title; the same with search terms).<\/p>\n<\/div>\n

\n

[123] Stephen N. Subrin, Uniformity in Procedural Rules and the Attributes of a Sound Procedural System: The Case for Presumptive Limits<\/i>, 49 Ala. L. Rev. 79, 101 (1997).<\/p>\n<\/div>\n

\n

[124] Steven R. Trybus & Sara Tonnies Horton, A Model Order Regarding E-Discovery in Patent (and Other?) Cases, <\/i>20 ABA Sec. of Litig., no. 2, Winter 2012, at 2, available at<\/i> http:\/\/jenner.com\/system\/assets\/publications\/8846\/original\/AModelOrderRegardingEDiscoveryinPatent.pdf?1328818478.<\/p>\n<\/div>\n

\n

[125] See Notes from the Mini-Conference on Preservation and Sanctions<\/i>, Jud. Conf. Subcommittee on Discovery 24 (Sept. 9, 2011), http:\/\/www.uscourts.gov\/uscourts\/RulesAndPolicies\/rules\/DallasMiniConf_Materials\/Notes%20from%20the%20Mini-Conference%20on%20Preservation%20and%20Sanctions.pdf.<\/p>\n<\/div>\n

\n

[126] Fed. R. Civ. P. 33(a) (no more than 25 written interrogatories, \u201cincluding all discrete subparts\u201d).<\/p>\n<\/div>\n

\n

[127] Fed. R. Civ. P. 30(d)(2) (\u201ca deposition is limited to 1 day of 7 hours\u201d).<\/p>\n<\/div>\n

\n

[128] Initial Rules Sketches<\/i>, Duke Conference Subcommittee, 19-20 (Oct. 2012), http:\/\/law.duke.edu\/sites\/default\/files\/images\/centers\/judicialstudies\/Panel_4-Background_Paper.pdf.<\/p>\n<\/div>\n

\n

[129] Advisory Committee on Civ. Rules, Memo Regarding Sanctions\/Preservation Issues<\/i>, in <\/i>Meeting on March 22\u201123, 2012 of the Advisory Committee on Civil Rules 249, 274-76 (2012), available at <\/i>http:\/\/www.uscourts.gov\/uscourts\/RulesAndPolicies\/rules\/Agenda%20Books\/Civil\/CV2012-03.pdf (proposing, inter alia<\/i>, that discovery \u201cneed not be provided\u201d from nine sources of ESI, nor from \u201ckey custodians\u201d and that search terms may be used).<\/p>\n<\/div>\n

\n

[130] See<\/i> Gensler, supra<\/i> note 99, at 547 (A 1978 proposal requiring cooperation was deleted \u201cin light of objections that it was too broad,\u201d and the requirement to participate in \u201cgood faith\u201d was substituted).<\/p>\n<\/div>\n

\n

[131] See, e.g.<\/i>, <\/i>Fed. R. Civ. P. <\/i>16(f); Fed. R. Civ. P. 37(f).<\/p>\n<\/div>\n

\n

[132] S.D. Cal. CivLR 16.1(d) (encouraging development of a \u201ccooperative discovery schedule\u201d).<\/p>\n<\/div>\n

\n

[133] Del. Default Standard, supra <\/i>note 95, at \u00b6 1(a) (\u201c[p]arties are expected to reach agreements cooperatively on how to conduct discovery under [Rules] 26-36\u201d).<\/p>\n<\/div>\n

\n

[134] N.D. Ohio LR 16.3, available at <\/i>http:\/\/www.ohnd.uscourts.gov\/assets\/Rules_and_Orders\/Local_Civil_Rules\/CoverSheet.htm (applying Appendix K absent agreement, which provides that the court expects parties to \u201ccooperatively reach agreement\u201d on how to conduct discovery).<\/p>\n<\/div>\n

\n

[135] See, e.g<\/i>., M.D. Ala. Guidelines to Civil Discovery Practice \u00a7 I(A), available at<\/i> http:\/\/www.almd.uscourts.gov\/docs\/GUIDCVDS.pdf (\u201cdiscovery in this district is normally practiced with a spirit of ordinary civil courtesy and honesty\u201d).<\/p>\n<\/div>\n

\n

[136] See, e.g.<\/i>, J. Robert H. Cleldan, Discovery Practices and Expectations<\/i>, U.S. District Ct. E.D. Mich., 1 (Apr. 2003), http:\/\/www.mied.uscourts.gov\/judges\/practices\/Cleland\/PDF%20Files\/DiscoveryPrac.pdf (\u201cThe court expects parties and counsel to conduct discovery in a cooperative way, consistent with Fed.R.Civ.P. 1.\u201d).<\/p>\n<\/div>\n

\n

[137] N.D. Cal., [Model] Stipulated Order Re: Discovery of Electronically Stored Information for Standard Litigation, available at<\/i> http:\/\/www.cand.uscourts.gov\/eDiscoveryGuidelines.<\/p>\n<\/div>\n

\n

[138] See, e.g.<\/i>, D. Mass. LR 26.l(a)(1).<\/p>\n<\/div>\n

\n

[139] E.D.N.Y. & S.D.N.Y. L.R. 26.4.<\/p>\n<\/div>\n

\n

[140] See<\/i> Steven S. Gensler, A Bull\u2019s Eye View of Cooperation in Discovery<\/i>, 10 Sedona Conf. J. 363, 374 (2009) (\u201c[T]o the extent local rules are construed as ordering parties to disclose information that would otherwise be the subject of formal discovery, or as mandating that the parties reach discovery agreements when there is a genuine dispute, they likely go too far . . . .present[ing] serious questions of validity in terms of inconsistency with the Federal Rules.\u201d).<\/p>\n<\/div>\n

\n

[141] See<\/i> Goss Graphics Sys., Inc. v. DEV Indus., Inc., 267 F.3d 624, 627 (7th Cir. 2001).<\/p>\n<\/div>\n

\n

[142] See<\/i> Thomas Y. Allman, Achieving an Appropriate Balance: The Use of Counsel Sanctions In Connection with the Resolution of E-Discovery Misconduct<\/i>, 15 Rich. J.L. & Tech. 9,\u00a0 at \u00b6 2 (2009), http:\/\/jolt.richmond.edu\/v15i3\/article9.pdf (a client has the ethical right to direct its counsel as it desires, and overly demanding local rules may impose unnecessary burdens on counsel with unforeseen consequences).<\/p>\n<\/div>\n

\n

[143] See<\/i> Joan C. Rogers, Ethics 20\/20 Rule Changes Approved by ABA Delegates With Little Opposition<\/i>, Bloomberg BNA (Aug. 15, 2012), http:\/\/www.bna.com\/ethics-2020-rule-n12884911245\/.<\/p>\n<\/div>\n

\n

[144] The Sedona Conference,\u00ae<\/sup><\/i> The Sedona Conference Cooperation Proclamation<\/i>, 10 Sedona Conf. J. 331, 331 (2009) (\u201can exercise in economy and logic\u201d because \u201c[i]t is not in anyone\u2019s interest to waste resources on unnecessary disputes, and the legal system is strained by \u2018gamesmanship\u2019 or \u2018hiding the ball\u2019 to no practical effect\u201d).<\/p>\n<\/div>\n

\n

[145] See<\/i> Bd. of Regents v. BASF Corp., No. 4:04CV3356, 2007 WL 3342423, at *5 (D. Neb. Nov. 5, 2007) (\u201cCompliance with [the 2006 Amendments] has placed\u2014on counsel\u2014the affirmative duties to work with clients to . . . cooperatively plan discovery with opposing counsel, Rule 26(f) . . . .\u201d).<\/p>\n<\/div>\n

\n

[146] See Initial Rules Sketches<\/i>, supra <\/i>note 128, at 42 (noting that opposition was based on \u201cconcern that cooperation is an open-ended concept that, if embraced in rule text, could easily lead to less cooperation and an increase in disputes in which every party accuses every other party of failing to cooperate\u201d).<\/p>\n<\/div>\n

\n

[147] The Sedona Conference\u00ae<\/sup> on behalf of its drafting teams and Steering Committee, suggested addition of the phrase \u201ccomplied with\u201d in Rule 1 to convey the value of cooperation, to which reference would be made in the Committee Note.\u00a0 See <\/i>Letter from Steering Committee of WG1 to J. David G. Campbell et al., Unites States District Court Justices (Oct. 3, 2012) (on file with author).<\/p>\n<\/div>\n

\n

[148] D.N.J. L.Civ.R. 26.1(d)(3)(b).<\/p>\n<\/div>\n

\n

[149] D. Wyo. U.S.D.C.L.R. 26.1(e)(2); see also<\/i> D. Wyo. U.S.D.C.L.R. 26.2 (\u201ccost sharing\u201d should be discussed at Rule 26(f) conference).<\/p>\n<\/div>\n

\n

[150] N.D. Ohio LR App. K.<\/p>\n<\/div>\n

\n

[151] John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform<\/i>, 60 Duke L.J. 547, 585 (2010).<\/p>\n<\/div>\n

\n

[152] See, e.g.<\/i>, Boeynaems v. LA Fitness Int\u2019l, LLC, 285 F.R.D. 331, 341 (E.D. Pa. 2012) (requiring additional discovery to be at the cost of the requesting party since \u201ca very large set\u201d of documents had already been amassed \u201cmostly at [producing party\u2019s expense]\u201d).<\/p>\n<\/div>\n

\n

[153] Model Patent Order, supra <\/i>note 85, at \u00b6 3 (\u201cLikewise, a party\u2019s nonresponsive or dilatory discovery tactics will be cost-shifting considerations\u201d).<\/p>\n<\/div>\n

\n

[154] Id. <\/i>at \u00b6<\/i> 10.<\/p>\n<\/div>\n

\n

[155] Initial Rules Sketches<\/i>, supra <\/i>note 128, at 37 (providing alternative formulations to emphasize that Rule 26(c) authorizes cost allocation).<\/p>\n<\/div>\n

\n

[156] See Costs and Burdens of Civil Discovery: Hearing Before the H. Subcomm. on the Constitution of the H. Comm. on the Judiciary<\/i>, 112th Cong. 9 (2011) (statement of Tony West, Assistant Att\u2019y Gen. of the United States).<\/p>\n<\/div>\n

\n

[157] Fed. R. Civ. P. 34(b)(2)(E)(ii); Fed. R. Civ. P. 45(d)(1)(B).<\/p>\n<\/div>\n

\n

[158] See <\/i>Kentucky Speedway, LLC v. NASCAR, No. 05-138-WOB, 2006 WL 5097354, at *8
\n (E.D. Ky. Dec. 18, 2006) (\u201cThe issue of whether metadata is relevant or should be produced is one which ordinarily should be addressed by the parties in a Rule 26(f) conference.\u201d).<\/p>\n<\/div>\n

\n

[159] See<\/i> Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d 146, 148 (D. Mass. 2009) (addressing format of production because \u201cthe Local Rules of this court have yet to provide any guidance on electronic discovery\u201d).<\/p>\n<\/div>\n

\n

[160] See D. Md. Suggested Protocol<\/i>, supra <\/i>note 79, at 17 (\u201cESI should be produced to the Requesting Party as Static Images,\u201d with any subsequent production in Native File format requiring a showing of \u201cparticularized need for that production\u201d).<\/p>\n<\/div>\n

\n

[161] See <\/i>D. Del. Default Standard, supra <\/i>note 92, at \u00b6 5(c)&(e) (listing metadata fields).<\/p>\n<\/div>\n

\n

[162] W.D. Wash. Model Protocol, supra <\/i>note 94, at \u00a7 II(E)(3)-(4).\u00a0 The Model Protocol also provides alternative instructions for more complex cases, including such details as appropriate software files for use with Concordance\u00ae<\/sup> or Summation\u00ae<\/sup> review platforms.\u00a0 See id.<\/i>, at \u00a7 III(E)(2).\u00a0 Also discussed is the use of OCR technology for scanning of hard copy documents, with appropriate cross-reference files.\u00a0 See id.<\/i>, at <\/i>\u00a7 III(2)-(4).<\/p>\n<\/div>\n

\n

[163] Aguilar v. Immigration & Customs Enforcement Div., 255 F.R.D. 350, 353 n.2 (S.D.N.Y. 2008) (defining TIFF and PDF, load files and native formats); id<\/i>. at 356 (citing to Sedona Conference Principle 12, Comment 12b Illus. i).<\/p>\n<\/div>\n

\n

[164] See, e.g.<\/i>, W.D.N.Y. L.R. Civ. P. 26(f) (describing need to agree on search methodology).<\/p>\n<\/div>\n

\n

[165] In re<\/i> Seroquel Prods. Liab. Litig., 244 F.R.D. 650, 664 (M.D. Fla. 2007).<\/p>\n<\/div>\n

\n

[166] D. Del. Default Standard, supra<\/i> note 92, at \u00b6 5.<\/p>\n<\/div>\n

\n

[167] Jason R. Baron, Law in the Age of Exabytes: Some Further Thoughts on \u2018Information Inflation\u2019 and Current Issues in E-Discovery Search<\/i>, 17 Rich. J.L. & Tech. 9, at \u00b6 32 (2011), http:\/\/jolt.richmond.edu\/v17i3\/article9.pdf (describing variations of techniques based on \u201clatent semantic indexing,\u201d such as \u201c\u2018predictive coding,\u2019 \u2018clustering\u2019 technologies, \u2018content analytics,\u2019 and \u2018auto-categorization,\u2019 among many others\u201d).<\/p>\n<\/div>\n

\n

[168] See<\/i> Ronni Solomon, Are Corporations Ready to Be Transparent And Share Irrelevant Documents With Opposing Counsel to Obtain Substantial Cost Savings Through the Use of Predictive Coding?<\/i>, The Metropolitan Corp. Couns., Nov. 2012, at 26, available at <\/i>http:\/\/www.metrocorpcounsel.com\/pdf\/2012\/November\/26.pdf (collecting relevant cases).<\/p>\n<\/div>\n

\n

[169] See <\/i>J.F. Edwards Constr. Co. v. Anderson Safeway Guard Rail Corp., 542 F.2d 1318, 1323-25 (7th Cir. 1976) (neither Rule 16 nor the \u201ccircumscribed area of power\u201d authorize a judge to compel compliance under facts of case); see also<\/i> Identiseal Corp. of Wis. v. Positive Identification Sys., Inc., 560 F.2d 298, 302 (7th Cir. 1977) (parties, rather than the court, should determine litigation strategy).<\/p>\n<\/div>\n

\n

[170] The Sedona Conference\u00ae<\/sup>, The Sedona Conference Database Principles: Addressing & Production of Databases & Database Information in Civil Litigation 12 (Conrad J. Jacoby et al. eds., Mar. 2011 Public Comment ed.), available at<\/i> https:\/\/thesedonaconference.org\/system\/files\/sites\/sedona.civicactions.net\/files\/private\/drupal\/filesys\/publications\/Database_Principles.pdf.<\/p>\n<\/div>\n

\n

[171] See, e.g.<\/i>, SEC v. Collins & Aikman Corp., 256 F.R.D. 403, 414 (S.D.N.Y. 2009) (compelling negotiations for a \u201cworkable search protocol\u201d because party and its counsel acted unreasonably).<\/p>\n<\/div>\n

\n

[172] Hanna v. Plumer, 380 U.S. 460, 477 (1965) (Harlan, J., concurring).<\/p>\n<\/div>\n

\n

[173] Olin Guy Wellborn III, The Federal Rules of Evidence and the Application of State Law in the Federal Courts<\/i>, 55 Tex. L. Rev. 371, 403-04 (1977) (a rule which affects \u201cprimary\u2014nonlitigation related\u2014conduct\u201d is prohibited by the Enabling Act).<\/p>\n<\/div>\n

\n

[174] See, e.g.<\/i>, W.D. Pa. LCvR 26.2(B).<\/p>\n<\/div>\n

\n

[175] A classic example of overreaching is the requirement in some early local initiatives that \u201cretention coordinators\u201d be appointed\u00a0 and charged with ensuring that relevant information was not deleted by individual custodians.\u00a0 See,\u00a0e.g.<\/i>, J. Timothy J. Savage, Order Governing Electronic Discovery, at \u00b6 8, http:\/\/www.paed.uscourts.gov\/documents\/procedures\/savpold.pdf (last visited Dec. 29, 2012); see also<\/i> N.D. Ohio LR App. K, at \u00b6 7; Administrative Order No. 174 Regarding Default Standard for Discovery of Electronically Stored Information (M.D. Tenn., July 9, 2007), available at<\/i> http:\/\/www.tnmd.uscourts.gov\/files\/AO_174_E-Discovery.pdf.<\/p>\n<\/div>\n

\n

[176] See <\/i>Miner v. Atlass, 363 U.S. 641, 650 (1960) (invalidating basic innovations which should have been addressed at the national level).<\/p>\n<\/div>\n

\n

[177] D. Kan., Guidelines for Discovery of Electronically Stored Information (ESI) \u00b6 1 (2007) (\u201ccounsel should [also] make a reasonable attempt to review their clients\u2019 ESI to ascertain the contents, including backup, archival and legacy data (outdated formats or media)\u201d), available at<\/i> http:\/\/www.ksd.uscourts.gov\/wp-content\/uploads\/2010\/03\/electronicdiscoveryguidelines.pdf.<\/p>\n<\/div>\n

\n

[178] Susan Ardisson & Joseph Decker, Western District Adopts New Local Rule on Electronic Discovery<\/i>, 11 Law. J. 4, 4 (2009).<\/p>\n<\/div>\n

\n

[179] Fed. R. Civ. P. 26(f) advisory committee\u2019s note 2006.<\/p>\n<\/div>\n

\n

[180] To date, the Federal Rules have been quite precise in regard to compliance obligations of counsel, which are mainly found in Rule 11 and 26(g), apart from obligations of good faith in several specific instances.\u00a0 See generally<\/i> Fed. R. Civ. P 11; Fed. R. Civ. P. 26(g).<\/p>\n<\/div>\n

\n

[181] Fed. R. Civ. P. 26(a)(1)(A)(ii).<\/p>\n<\/div>\n

\n

[182] Adoption and Amendments to Civil Rules, 234 F.R.D. 219, 312 (2006).<\/p>\n<\/div>\n

\n

[183] Richard Marcus, Only Yesterday: Reflections on Rulemaking Responses to E-Discovery<\/i>, 73 Fordham L. Rev. 1, 16-17 (2004) (citing D.N.J. L.Civ.R. 26.1(d)(1) and Wyo. U.S.D.C.L.R. 26(1)(d)(3)).<\/p>\n<\/div>\n

\n

[184] Lee H. Rosenthal, Electronic Discovery\u2014Is the System Broken? Can It Be Fixed?<\/i>, 51 The Advoc. 8, 13 (2010).<\/p>\n<\/div>\n

\n

[185] Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 386 (2d Cir. 2001) (invalidating use of standing order to require party to furnish information not required by law).<\/p>\n<\/div>\n

\n

[186] The Comments to the ABA Model Rule 4.4(b) and the related ABA Opinions\u00a0 take the position that whether the return of privileged information is required is committed to the receiving lawyer\u2019s discretion, subject to procedural and evidentiary law.\u00a0 See <\/i>Model Rules of Prof\u2019l Conduct R. 4.4(b) (2012); ABA Comm. on Ethics & Prof\u2019l Responsibility, Formal Op. 06-440 (2006); ABA Comm. on Ethics & Prof\u2019l Responsibility, Formal Op. 05-437 (2005).<\/p>\n<\/div>\n

\n

[187] See <\/i>Act of Sept. 19, 2008, Pub. L. No. 110-322, 122 Stat. 3537.<\/p>\n<\/div>\n

\n

[188] See, e.g.<\/i>, Rajala v. McGuire Woods, LLP, No. 08-2638-CM-DJW, 2010 WL 2949582, at *7 (D. Kan. July 22, 2010).<\/p>\n<\/div>\n

\n

[189] N.D.N.Y., Civil Case Management Plan \u00b6 12(G) (2007), available at <\/i>http:\/\/www.nynd.uscourts.gov\/documents\/CivilCaseMgmtPlanFILLABLE_000.pdf.<\/p>\n<\/div>\n

\n

[190] See, e.g.<\/i>, Local Rules W.D. Wash. CR 26(f)(1)(H) (requiring discussion of \u201cprocedures\u201d for handling inadvertent production \u201cpursuant to Rule 502(d)or (e) of the Federal Rules of Evidence\u201d).<\/p>\n<\/div>\n

\n

[191] See, e.g.<\/i>, Gaza & Rawnsley, supra <\/i>note 27, at 34 (district courts have adopted a \u201cwide variety of methods\u201d to see that \u201cdiscovery proceeds in a fair and orderly manner\u201d).<\/p>\n<\/div>\n

\n

[192] See
\n<\/i> John M. Barkett, The 7th<\/sup> Circuit E-Discovery Pilot Project:\u00a0 What We Might Learn and Why It Matters to Every Litigant in America 3-4 (2011), available at<\/i> http:\/\/apps.americanbar.org\/litigation\/litigationnews\/civil_procedure\/docs\/barkett.december11.pdf.<\/p>\n<\/div>\n

\n

[193] See generally <\/i>J. Joy Flowers Conti & Richard N. Lettieri, In re ESI: Local Rules Enhance the Value of Rule 26(f) \u201cMeet and Confer\u201d<\/i>, 49 Judges\u2019 J. 29 (2010).<\/p>\n<\/div>\n

\n

[194] To the author, it would appear that this can best be accomplished making appropriate use of standardized forms coupled with some form of minimal rulemaking, along with a judicious (limited) amount of ad hoc guidelines.<\/p>\n<\/div>\n

\n

[195] See<\/i> Adoption and Amendment to Civil Rules, 234 F.R.D. 219, 273 (2006) (explaining that \u201cinconsistencies [due to varying local rules] are particularly confusing and debilitating [to large entities], the uncertainty, expense, delays, and burdens of such discovery also affect small organizations and even individual litigants\u201d).<\/p>\n<\/div>\n

\n

[196] See <\/i>Charles S. Fax, Does Federalism Work for the Federal Rules?<\/i>, ABA Litig. News, (Feb. 8, 2012), http:\/\/apps.americanbar.org\/litigation\/litigationnews\/civil_procedure\/012512-federalism-federal-rules.html (noting adverse impact on efficiency, costs and the \u201crisk of sanctions due to unfamiliarity with, or negligent failure to adhere to, local norms that differ from a lawyer\u2019s home jurisdiction\u201d).<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Download PDF \u00a0Cite as:\u00a0Thomas Y. Allman, Local Rules, Standing Orders, and Model\u00a0Protocols: Where the Rubber Meets the (E-Discovery) Road,\u00a019 RICH. J. L. & TECH 8 (2013), available at\u00a0http:\/\/jolt.richmond.edu\/v19i3\/article8.pdf. By Thomas Y. Allman* [District Courts], impatient with the failure of the national system to solve pressing, indeed urgent, procedural problems, utilize local rules in an effort […]<\/p>\n","protected":false},"author":4287,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1228],"tags":[],"class_list":["post-1180","post","type-post","status-publish","format-standard","hentry","category-articles"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/paMHOZ-j2","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/1180","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/users\/4287"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/comments?post=1180"}],"version-history":[{"count":0,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/1180\/revisions"}],"wp:attachment":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/media?parent=1180"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/categories?post=1180"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/tags?post=1180"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}