Walking the Plank, Looking Over Your Shoulder, Fearing Sharks Are in the Water: E-Discovery in Federal Litigation? John M. Barkett Shook, Hardy & Bacon L.L.P. Miami, Florida Table of Contents Introduction.........................................................................................................................................................3 Why E-Discovery Is So Expensive ...................................................................................................................10 Rule 16 and the Return of the Judges..............................................................................................................14 Cooperation .......................................................................................................................................................18 It’s Time to Bring Rationality and Consistency to The Prelitigation Duty to Preserve..............................27 Inherent Authority: Variable Circuit Standards of Culpability to Warrant an Adverse Inference Instruction29 Chambers v. Nasco: Must Bad Faith Exist to Justify the Exercise of Inherent Power?..................................33 Other Variabilites in the Prelitigation Duty to Preserve..................................................................................36 Must a Lawyer Be Involved to Trigger a Duty to Preserve in a Prelitigation Setting? ..............................36 Trigger Problems: Industry Litigation........................................................................................................39 Trigger Problems: Can Beauty Really Be in the Eyes of the Beholder?.....................................................40 Trigger Problems: Demand Letters ............................................................................................................42 Scope of the Duty to Preserve in Relation to Rule 26(b)(1) ........................................................................44 Possible Solutions ...........................................................................................................................................46 Are the E-Discovery Amendments to the Federal Rules Working? .............................................................49 The Rule 26(f) Conference of the Parties and the Rule 16(b) Scheduling Conference and Order..................49 630575 v2 1 Copyright John M. Barkett 2010 Discovery Into Inaccessible Sources of Electronically Stored Information Under Rule 26(b)(2) ..................50 Protection from Sanctions Under Rule 37(e) ..................................................................................................54 Answering Questions Under Rule 33(d) by Reference to Electronically Stored Information ........................56 Request for Electronically Stored Information Under Rule 34 – Sampling, Testing, and the Form or Forms of Production...................................................................................................................................................57 Discovery of Electronically Stored Information From Nonparties Under Revised Rule 45 ...........................63 Under New Rule 26(b)(5)(B), Asserting Claims of Privileged or Work Product Protection After Production .........................................................................................................................................................................66 Conclusion..........................................................................................................................................................68 Appendix I – Statements of the Trigger of the Duty to Preserve in Different Circuits...............................69 Appendix 2 – Recommendations Regarding E-Discovery in New York State Courts ................................73 Appendix 3 – State Court Rules on E-Discovery............................................................................................75 About the Author ..............................................................................................................................................82 John M. Barkett...............................................................................................................................................82 630575 v2 2 Copyright John M. Barkett 2010 Walking the Plank, Looking Over Your Shoulder, Fearing Sharks Are in the Water: E-Discovery in Federal Litigation? John M. Barkett Shook, Hardy & Bacon L.L.P. Miami, Florida INTRODUCTION In 1906, Roscoe Pound, a Ph.D. botanist, lawyer, and then dean of the University of Nebraska College of Law, addressed the American Bar Association convention urging procedural reform in the federal court system. In a speech entitled, The Causes of Popular Dissatisfaction with the Administration of Justice,1 he argued that there was a “real and serious dissatisfaction” with courts2 and “a lack of respect for law which exists in the United States today.” One of the sources of this dissatisfaction, Pound argued, was the rigor of procedure under common law and the limited role of the judge in the dispute resolution process. He starkly described the state of the “administration of justice” 100 years ago: “Hence in America we take it as a matter of course that a judge should be a mere umpire, to pass upon objections and hold counsel to the rules of the game, and that the parties should fight out their own game in their own way without judicial interference. We resent such interference as unfair, even when in the interests of justice.” Discussing lawyer abuse of procedural rules, Dean Pound was unmerciful: The idea that procedure must of necessity be wholly contentious disfigures our judicial administration at every point. It leads the most conscientious judge to feel that he is merely to decide the contest, as counsel present it, according to the rules of the game, not to search independently for truth and justice. It leads counsel to forget that they are officers of the court… The effect of our exaggerated contentious procedure is not only to irritate parties, witnesses and jurors in particular cases, but to give the whole community a false notion of the purpose and end of law. Hence comes, in large measure, the modern American race to beat the law. If the law is a mere game, neither the players who take part in it or the public who witness it can be expected to yield to its spirit when their interests are served by evading it. And this is 1 29 ABA Rept. 395 (parts of which quoted here reprinted at http://www.law.du.edu/sterling/Content/ALH/pound.pdf). 2 His remarks were specifically directed at the civil, rather than the criminal, justice system. 630575 v2 3 Copyright John M. Barkett 2010 doubly true in a time which requires all institutions to be economically efficient and socially useful.3 Dean Pound’s speech set in motion events that eventually resulted in the adoption of the Federal Equity Rules of 19124 that, 25 years later, served as the framework for the Federal Rules of Civil Procedure.5 In light of Dean Pound’s characterization of litigation in the law courts, it should not have been surprising that Rule 1 of the new Federal Rules of Civil Procedure directed courts to construe and administer6 the rules of civil procedure “to secure the just, speedy and inexpensive determination of every action.”7 3 29 ABA Rept. 395 (http://www.law.du.edu/sterling/Content/ALH/pound.pdf). 4 In 1908, the ABA created a Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation, which became known as the “Committee of Fifteen.” Taft, The Administration of Justice—Its Speeding and Cheapening, 21 Va. St. B.A. Rep. 233, 238 (1908), reprinted in Taft, The Delays of the Law, 18 Yale L.J. 28 (1908). With the support of the Committee of Fifteen, the Supreme Court adopted the Federal Equity Rules of 1912. Hopkins, The New Federal Rules of Equity (reproduced by Google Books at: http://books.google.com/books?hl=en&id=L_k9AAAAIAAJ&dq=federal+equity+rules+of+1912&printsec=frontcover& source=web&ots=omCCV6z8Hg&sig=5LMr_uKZpRFn7HmK0MgIFPk86A0#PPR11,M1). This book also contains “cognate statutory provisions and former equity rules” along with an introduction, forms, and annotations by James Love Hopkins, a member of the Bar of the Supreme Court. The new equity rules eliminated technical pleading requirements and demurrers (Equity Rule 18, 29), gave parties the right to amend pleadings (Rules 19, 28, 34), and permitted depositions and interrogatories, although with limitations (Equity Rules 47, 58). Judges sitting in equity were allowed to hear witnesses testify live in open court (Equity Rule 46) rather than to have to read documents containing the testimony of the witnesses. 5 Dean Pound’s speech also became a focal point at “The Pound Conference” held in 1976 in Minneapolis, in the same room at the Minnesota State Capitol Building where Dean Pound had given his 1906 speech. Lee, The Profession Looks at Itself – The Pound Conference of 1976, 3 B.Y.U. Law Rev. 737 (1981). The former solicitor general explained that participants convened to “consider current problems of American judicial administration and chart a course for improvement by the turn of the century.” Id. at 738. In his after-the-fact summary, he wrote that from “one perspective, a comparison of Pound’s 1906 address with the proceedings of the Pound Conference seven decades later is cause for pessimism. The comparison reveals that, while change has occurred, some of the changes have become the new