Product Liability 2009 - Arnold & Porter LLP

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International Electronic Discovery Carroll, Burdick & McDonough International
c. e-Discovery Rules in US State Courts
In addition to amendments to the US Federal Rules of Civil Procedure,
many US state courts have enacted or are considering e-Discovery
statutes, rules and guidelines. As of March 2009, over half of all US
states have either court rules or statutes addressing e-Discovery in
some form: Alaska, Arizona, Arkansas, California, Connecticut,
Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Montana,
Nebraska, New Hampshire, New Jersey, New York, North Carolina,
North Dakota, Ohio, Tennessee, Texas, Utah, Virginia and Wyoming.
In addition, California, Florida, New Mexico, New York and
Washington are evaluating proposed rules. In August 2006, the
Conference of Chief Justices of the US state courts issued an updated
and detailed “Guidelines for State Trial Courts Regarding Discovery
of ESI”. In December 2007, the National Conference of
Commissioners on Uniform State Laws approved its “Uniform Rules
Relating to the Discovery of Electronically Stored Information”,
which advocates the adoption of e-Discovery rules in all US state
courts.
d. e-Discovery Outside of the US
Courts and entities outside of the US have also issued rules and
guidelines related to e-Discovery. To date, all common law countries
have some form of e-Discovery regulations and provisions. For
example in the UK, the October 2005 amendments to the Practice
Direction to UK Civil Procedure Rules r31 brought e-Discovery and
electronic disclosure to the fore for UK companies involved in
litigation and those conducting discovery in the UK. Companies and
their legal advisers not only have to examine how electronic
documents are created, stored, searched and retrieved in litigation, but
they also have to be aware of and follow the guidelines for e-
Discovery at the very earliest stages of litigation. UK courts have
even interpreted the e-Discovery rules to include the creation and
production of reports on ESI.
The Supreme Court of Ireland reached a similar result in Dome
Telecom, Ltd. v. Eircom, Ltd. (2007) IESC 59. Though the court
refused to order the creation of a report on the data in this case, holding
the discovery unnecessary and disproportionate, it did hold that “[i]t
may … be necessary to direct a party to create documents even if such
documents do not exist at the time the order is made”.
UK and Irish treatment of a litigant’s e-Discovery duties are more
expansive than US e-Discovery jurisprudence to date: in the US a
litigant need only produce responsive documents and things in its
custody and control and need not create evidence for production. [See
Endnote 4.] Though, as e-Discovery jurisprudence is becoming more
sophisticated, this too is changing.
Canada was a leader in the e-Discovery front. Several Canadian
provinces have adopted some form of the well-known “Sedona
Principles Governing Electronic Discovery”. In fact, the Province of
Ontario issued and has been working within the framework of its
“Guidelines for the Discovery of Electronic Documents in Ontario”
since late 1995. While the principles are issued as guidelines, rather
than law, and are therefore not enforceable directly, they do “aid in the
enforcement of agreements between parties or provide the basis for
court orders” related to e-Discovery. Canadian practitioners have
reported that a separate body of e-Discovery law has “mushroomed”
in recent years. Current practical considerations in Canada include
many of the same issues facing other product liability practitioners
around the globe: retention and preservation issues; defining the
proper scope of production; shifting the costs of e-Discovery; and
gaining access to computer systems and data sources such as hard
drives.
The Canadian province of Nova Scotia recently implemented
electronic discovery rules modeled on the US e-Discovery
amendments to the FRCP. The rules require the parties to “make
diligent efforts to become informed” about relevant ESI in their
present or past control, and to search for, acquire, and disclose all such
data. Nova Scotia Civil Procedure Rule 15.02(1)(a). In addition to
this broad preparation and production requirement, the new rules
include a new duty to preserve ESI as soon as a party “becomes aware
that a proceeding is to be defended or contested.” Id. at Rule 16.02(2).
Under this provision, a defendant in a Nova Scotia court may be
required to create a “litigation hold” before the formal start of
litigation. Further, the parties are encouraged to agree on how
discovery should proceed even before discovery begins, which will
require very early understanding of the relevant ESI relevant to a case.
The rules also provide “default provisions” governing discovery in the
event that the parties fail to reach such an agreement.
In Australia, the Federal Practice Note on Document Management,
Discovery and Electronic Trials came into effect on July 1, 2008. This
Practice Note applies to cases where the volume of discovery is
reasonably anticipated to exceed 200 documents. It provides a
framework for discovery of both paper and electronic documents and
is supposed to facilitate the use of technology to increase litigation
efficiency. In addition to the Practice Note, the Court also issued the
following Related Materials: (a) the Pre-Discovery Conference
Checklist (PDCC); (b) the Default Document Management Protocol
(DDMP); (c) the Sample Advanced Document Management Protocol;
(d) the Pre-Trial Conference Checklist (PTCC); and (e) the On-line
feedback forum and email distribution list. On January 29, 2009,
Australia implemented further U.S.-style rules for electronic
discovery in the Practice Note to The Use of Technology in the
Management of Discovery and the Conduct of Litigation. Like the
recent rule changes in Canada, the Practice Note requires parties and
counsel to meet and confer early in litigation to discuss electronic
discovery protocols. The parties should cover the PDCC checklist of
topics, including the “strategy for the identification, collection,
processing, analysis, review and exchange of Electronic Documents”including
“those contained within databases, proprietary computer
systems and other uncommon formats or repositories”.
Other - primarily civil law - jurisdictions and the EU have on the
books either legislation, binding court rules or guidelines to address
the maintenance, storage, transfer and use of ESI in civil litigation.
Most limit the information available to parties seeking discovery in
litigation, including to protect personal privacy. [See Endnote 5.]
e. e-Discovery in International Arbitration
In addition to the increasing prevalence of e-Discovery in litigation
before courts, e-Discovery has also recently been an issue in
international arbitration. As is common in most civil law jurisdictions,
discovery is significantly more limited in the arbitration context than
in US litigation. Generally, the parties will agree to or the arbitral
tribunal will decide on the proper scope of discovery. However, since
arbitration is not governed by civil procedure rules, many parties
anticipating arbitration may not fully preserve all data and
information. But since the vast majority of business information is
now stored electronically, parties to arbitration are increasingly
actively using or seeking the discovery of ESI in their proceedings. To
date, however, the rules of the major arbitral organisations do not deal
with the issue of e-Discovery. This too is beginning to change. In
October 2008, the Chartered Institute of Arbitrators issued its
“Protocol for E-Disclosure in Arbitration”. While it does not apply to
all cases before the Tribunal, the Protocol aims to address the issues
surrounding ESI early in a case, including the proper scope, form of
production and costs of E-Disclosures. As e-Discovery becomes more
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