December 11, 2012
The Current E-Discovery Model in the United States
In the United States, the most notably impacted area in civil litigation has been the incorporation of discovery plans for the exchange of electronically stored information (“ESI”) into courts’ pretrial scheduling orders by the Court (Federal Rules of Civil Procedure (“FRCP”) 16 ). This is done in accordance with parties’ obligations to meet and confer to propose the context of such plans to the court (FRCP 26). In addition, rules governing civil litigation discovery tools such as interrogatories (FRCP 33), document requests (FRCP 34), and third-party subpoenas (FRCP 45) have arguably been among the most widely addressed by courts since the December 1, 2006 amendments of the FRCP.
The FRCP relating to e-discovery and the development of ground-breaking legal precedent concerning preservation and identification of relevant ESI are arguably borne from a desire in the United States for systemic adoption of “best practices” in handling the collection, review, and production of ESI in civil litigation. As a result the legal profession has collaborated with ESI experts to cultivate the EDRM. This in turn led to many jurisdictions establishing codified requirements for parties to identify, review and produce ESI in civil litigation matters before the court—with a proposed model of conduct to follow.
The rules address the importance of handling e-discovery with diligence at the federal level, and resources such as The Sedona Principles provide practical guidance on how to handle ESI. In addition, at the state level, trial judges are guided (but not bound) by The National Center for State Courts’ Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information (“Guidelines”) Notably, like the Zubulake v. UBS Warburg, LLC line of cases, the Guidelines also reference The Sedona Principles.
Accumulation of discovery costs coupled with the added exposure of regulatory penalties in e-discovery mishaps only further aggravate the already uncertain and expensive nature of complex business litigation, and this applies internationally as well as in the United States. However, before addressing the need for a dedicated set of rules to address cross-border e-discovery, it is important to understand nuances of the most predominant legal systems around the world.
Understanding the dynamics of the various international legal systems is important when analyzing the role discovery – and particularly e-discovery – will play in a particular geographical setting. Most importantly, counsel must appreciate the extent and nature of the roles judges take in different countries and the likelihood litigants will be able to rely on legal precedent when handling and litigating issues concerning ESI.
In the next blog post I will dip into the major common and civil law systems of the world as well as how the use of arbitration differs outside of the United States.