Litigation 101 for eDiscovery Tech Professionals: The Rules
December 19, 2012
** This blog series is intended to introduce new eDiscovery professionals to the litigation process and litigation terminology. Click here, here, here, here, here, here, here, here and here to go to the first nine posts in the series.**
As a litigation technology professional, you are probably very knowledgeable about electronic discovery and the Electronic Discovery Reference Model, so we’re not going to spend time discussing the technical aspects of eDiscovery. I would, however, like to address how electronic discovery fits into the bigger litigation picture, and how it has affected the practice of litigation. And we’ll start with how it affected the courts’ rules for how a case proceeds.
Attorneys handling large-scale litigation who have been practicing for 20+ years have experienced significant changes to the way they practice. Early in their careers, discovery meant “paper”. Today, it means electronic discovery. Conceptually, things haven’t changed much. Paper needed to be preserved, collected, reviewed, and produced. So does electronic discovery. Electronic discovery, however, has significantly changed the way in which those tasks are done. And it has changed the rules for how discovery is handled.
In Federal cases, the rules for handling paper discovery were adequately covered in the Federal Rules of Civil Procedure, and state and local courts had similar rules that spelled things out. Electronic discovery entered the picture, and for years attorneys struggled with applying the rules of civil procedure to handling electronic documents – rules that clearly hadn’t anticipated this evolution. In case after case there were sanctions imposed on counsel for improper handling of electronic documents, and precedents were established.
On December 1 of 2006, amended Federal Rules of Civil Procedure went into effect. The amended rules – for the first time – addressed handling electronic discovery and provided guidance to attorneys and the courts in determining what is reasonable, what is expected, and what is required regarding the handling and production of electronic discovery. The amended rules were also aimed at minimizing the financial burdens imposed by electronic discovery.
Each state has its own rules that are applied in state courts. Most are closely modeled on the Federal Rules. It’s important, however, that attorneys are familiar with the specific rules that are being applied in the court in which a case is filed. For previous posts regarding how some states handle eDiscovery, click here.
While you don’t need to know the Federal Rules of Civil Procedure inside-out, it’s useful for you to have a general understanding of what’s covered. It’s probably a good idea for you to skim through them – here’s a link. And, it’s also useful to understand the changes made to the rules in 2006 regarding electronic discovery. There’s a good summary of that here.
We’ve still got quite a bit to cover regarding discovery. In our next post, we’ll start discussing document handling steps and how technology professionals can help attorneys with these tasks. Please let us know if there are specific litigation topics that you’d like to see covered in this blog series.Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.