Diamond Post

Status of State Rules

The states that essentially adopted the provisions of the 2006 Amendments to the Federal Rules are Alabama, Alaska, Arizona, Arkansas, California, Indiana, Iowa, Kansas, Maine, Michigan, Minnesota, Maryland, Montana, New Jersey, North Dakota, Ohio, Utah, Virginia and Wyoming.  States that have adopted some concepts from the federal rule amendments (and therefore made limited changes to their rules) are Arkansas, Louisiana, Nebraska, New Hampshire and New York.  Texas pioneered its own approach to the discovery of electronically stored information even before the 2006 federal amendments.  Idaho and Mississippi have adopted the Texas approach.  See Thomas Y. Allman, State E-Discovery Rulemaking After The 2006 Federal Amendments: An Update, 4th Annual Sedona Conference Institute, March 2010.

South Carolina has not yet enacted any procedural rules that address electronically stored information.  However, it is important to note that the Practice and Procedure Committee of the South Carolina Bar has stated goals for the 2010-2011 year and the third goal is to "consider supplementing rules, including 26(a) and (f), to address issues relating to electronic discovery and information."  

Cooperation is Zealous Advocacy

Strategic cooperation with opposing counsel does not conflict with the concept of zealous advocacy and in many instances constitutes the most zealous advocacy that can be rendered on behalf of a party.  Case law is replete with instances of sanctions as well as enormous costs assessed to parties as a result of their failure to cooperate.  To the extent that parties can jointly agree on the best method to solve discovery problems, especially those involving electronically stored information, such cooperation can allow the parties to save money, maintain greater control over the dispersal of information, maintain good will with the court and generally avoid the costly process of discovery about discovery.  10 Sedona Conf. J. Vol. X, The Case for Cooperation, 339 (Supp. 2009).  

Rules 1, 26 and 37 of the Federal Rules of Civil Procedure not only require it but assume cooperation between litigating parties throughout the litigation process.  Rule 26 imposes obligations on parties and counsel to disclose certain information at the outset of litigation and to meet and confer with regard to the nature of the claims involved and the specifics related to the scope of discovery.  The rules have always required that parties must have a legitimate basis for the discovery demands and disputes.  The increased volume and complexity of discoverable electronically stored information in modern litigation has increased the cost of the combative approach to discovery as well as the potential savings of a more cooperative approach.  In a survey of 2,690 attorneys recently involved in a federal litigation, more than 90% of respondents, representing both plaintiffs and defendants, "agreed" or "strongly agreed" with the statement, "Attorneys can cooperate in discovery while still being zealous advocates for their clients."  Id. at 358 (citing Emory G. Lee II & Thomas E. Willging, Federal Judicial Center National, Case-Based Civil Rules Survey, 62-63 (Federal Judicial Center October 2009)).  

Cooperation can be very strategic.  Incorporating opposing counsel in identifying and establishing a reasonable search protocol and key search terms can effectively blunt any later complaints should those agreed upon terms, protocol and parameters be shown to have failed to have reached or collected relevant information.  At the very least an offer should be made for opposing counsel to be involved in establishing search protocol and key terms.  Whether the offer is refused or accepted, the offer may effectively nullify any later attack related to the efficacy of any search and collection activities.  Requesting a list of key records custodians from opposing counsel can also have the same effect.  In many cases opposing counsel is representing  a party that likely has some knowledge of who would have records and obtaining a list of who the opposing party believes has relevant records can be valuable information to obtain early in the litigation and prevent future issues with regard to the scope of any search.  Failure of opposing counsel to provide any assistance will likely frustrate any argument by him at a later date that alleges the scope of any search was insufficient or the search was conducted in bad faith.  Cooperation in the form of agreement as to search terms, protocol and key records' custodians ultimately reduces the legal risk of having to undertake additional, new and different searches through large collections of data which can be expensive.  Importantly, cooperation can prevent discovery about discovery which distracts from the true purpose of the litigation process-- the true issues in contention in an attempt to obtain a resolution.  Id. at 358-359.

It is important to stay abreast of the procedural and common law developments in e-discovery throughout the United States and GWB continues to monitor and assess the current development of this body of law.  More importantly, it is critical to be strategic in how you approach e-discovery and cooperation is an important concept that is currently being emphasized by the courts as they confront issues related to e-discovery.  Accordingly, being informed, creative and proactive when it comes to e-discovery remains an important emphasis at GWB.