E-Discovery Guidelines for State Courts

Discovery of electronic documents presents -- both in quantity (there are a bazillion of them) and quality (metadeta, versions, media, software). In August the Conference of Chief Justices (affiliated with the National Center for State Courts) released Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (Richard Van Duizend, Reporter).

On the special challenges of e-discovery, consider this paragraph from the report's introduction:

One paper document originating from a corporate computer network and shared with other employees who commented on it may result in well over 1,000 copies or versions of that document in the system. A company with 100 employees sending or receiving the industry average 25 e-mail messages a day produces 625,000 e-mail messages a year, generally unorganized and full of potentially embarrassing or inappropriate comments. Document search locations not only include computer hard drives, but also network servers, backup tapes, e-mail servers; outside computers, servers, and back up tapes; laptop and home computers; and personal digital assistants or other portable devices. Electronic documents are easily damaged or altered – e.g., by simply opening the file. Computer systems automatically recycle and reuse memory space, overwrite backups, change file locations, and otherwise maintain themselves automatically—with the effect of altering or destroying computer data without any human intent, intervention, or even knowledge. And, every electronic document can look like an original.

p. v. Zowie.

Among the recommendations: Judges should encourage attorneys to become familiar with how their clients store and manage documents so that they can make informed decisions about and responses to discovery requests. Attorneys should be prepared to work out an agreement with opposing counsel about what documents to exchange and in what format. They should consider agreements covering the inadvertent transmission of privileged material.

For more on e-discovery, state and federal, see the LLRX column, E-Discovery Update.