This column is the first installment in a series addressing the challenges and opportunities presented by e-discovery in tribunals lacking any rules or published precedents governing e-discovery.
Given the rapid evolution of e-discovery in the federal courts, it is easy to forget that, only five years ago, the e-discovery amendments to the Federal Rules of Civil Procedure had just taken effect, and most federal district courts had not yet adopted any local rules or standing orders addressing e-discovery. Litigating e-discovery issues with the benefit of court rules, standing orders and published precedents is still only a very recent development. However, the current interest of the federal judiciary in addressing the challenges of e-discovery has distracted attention from the fact that complex civil litigation is still proceeding in many state courts and in arbitration without comparable guideposts. The practice of e-discovery in these forums can present very different challenges from current practice in the federal courts, and commentators who focus solely upon the federal courts ignore the realities of what for most large companies are critical e-discovery battlegrounds.
The basic premise of this series is to challenge the notion that the federal district courts and those state courts that have adopted e-discovery standing orders or procedures are the most favorable forums in which to litigate cases requiring complex e-discovery. The most “sophisticated” e-discovery courts are not always the right forum for your client. Where the scope of e-discovery is a key strategic issue, skilled trial counsel will weigh carefully the potential rewards and risks of litigating in a forum without extensive e-discovery ground rules.
Consider, for example, the Delaware federal district court’s current “Default Standard for Discovery, Including Discovery of Electronically Stored Information.” Strictly speaking, this default standard is not binding, but most of its provisions will apply absent agreement of all parties or good cause shown by an objecting party. Although much can be said in praise of the Delaware Default Standard, it is not difficult to imagine cases in which its application could be outcome determinative.