Maryland District Court Magistrate Judge Grimm Offers Insight Into E-Discovery
Many authorities and experienced litigators recognize that the discovery of electronic documents and information has become the centerpiece of every civil litigation. The reason for all the attention? In December 2006, the Federal Rules of Civil Procedure were amended to specifically require e-discovery in the conduct of civil litigation. Unfortunately, as Maryland District Court Magistrate Judge Paul W. Grimm pointed out during a recent LEXIS webinar, the new e-discovery rules are not self executing. To address that short-coming, the Federal District Court for the District of Maryland recently published what amounts to a user’s guide to e-discovery. Entitled Suggested Protocol for Discovery of Electronically Stored Information, the guide provides a comprehensive list of topics and issues that lawyers should consider before and during the initial meet-and-confer conference required under the e-discovery rules, as well as during the collection and production of electronically stored information (ESI) to opposing parties.
The stated purpose of Maryland's Protocol is "to facilitate the just, speedy, and inexpensive conduct of discovery involving ESI in civil cases, and to promote, whenever possible, the resolution of disputes regarding the discovery of ESI without Court intervention.” Magistrate Judge Grimm is the lead proponent of the Protocol, which is characterized as a working model that has not yet been adopted by the Maryland District Court.
Notably, the Protocol states that "If a party is not reasonably prepared for the Fed.R.Civ.P. 26(f) Conference of Parties in accordance with the terms of this Protocol, that factor may be used to support a motion for sanctions by the opposing party for the costs incurred in connection with that Conference." Judge Grimm commented that counsel seeking the District Court's intervention in e-discovery disputes will be in a better position to argue the merits of their motion to compel if they can establish that they tried to follow the Protocol but were rebuffed by opposing counsel.
Comments:
- Maryland’s Protocol should be embraced by attorneys planning for and conducting e-discovery during litigation in Maryland, because little guidance is currently available in the form of court orders and opinions concerning how to complying with the 2006 e-discovery rules (several district courts have adopted local rules addressing e-discovery, but I am not aware of any other court that provides nearly the same level of guidance as Maryland's Protocol).
- Like other District Courts (e. g., New Jersey and Delaware), the Protocol suggests that counsel engage the help of an information technology/information management (IT/IM) liaison to help with e-discovery. That should be welcome news to the expanding e-discovery forensic evidence industry that popped up as a result of the 2006 e-discovery rules. Many of the private companies that provide e-discovery services offer plenty of informational resources for lawyers involved in e-discovery.
- One of the interesting features of the Protocol is the division of non-apparent or meta-data associated with almost all electronic data into three categories: System Meta-Data, Substantive Meta-Data, and Embedded Meta-Data. The distinction will be meaningless, of course, if the parties agree not to exchange meta-data.
- For a general overview of e-discovery from a practical perspective, see the author's article: E-Discovery: An Environmental Professional's Guide. ELR (August 2007).
Brian:
Knowing e-discovery is inevitable, an enterprise can use technology proactively to make its e-records more benign. What do you think? --Ben
http://hack-igations.blogspot.com/2008/05/nix-smoking-gun-e-discovery.html