"You live by the sword. You die by the sword."
Those are the words Pittsburgh Federal District Judge Nora Barry Fischer used in January 2012 to describe the predicament to which parties who chose to forgo the exchange of ESI willingly subjected themselves in her court. In other words, she said, parties could agree -- either out of fear, naiveté, haste or economy -- to eschew electronic discovery completely, and with it the perceived costs, delays and burdens.
“I tell these lawyers that if they have such an agreement, I will not impose eDiscovery on them, but that they can't later raise eDiscovery issues," she said.
Some three and a half years later, the factors that drive such decisions -- whether skepticism or impatience, or the perception that ESI is synonymous with excessive cost and burden -- still persist in the Western District of Pennsylvania and elsewhere, despite strides to educate practitioners on the evidentiary value of ESI and its centrality to a lawyer's ability to competently represent a client.
"I find it very surprising," US Magistrate Judge Lisa Lenihan, a colleague of Judge Fischer's in Pittsburgh, told Logikcull. "I estimate that parties agree to forgo eDiscovery in about 10 percent of my cases."
"People just don't think they need it. Sometimes I ask them what they expect to get in discovery and they actually do want ESI, but don't realize that's what they're asking for," she added. "I think that often they are worried about the cost."
Judge Fischer told Logikcull that she sees parties passing on eDiscovery most often in employment cases, "where the employer says all records are hard copy except for payroll."
"I've run into some situation where, for whatever reason, people agree to forgo (exchange of) email and text-based information," Judge Fischer said. "Lately I've heard some companies have a rule that employment matters should not be dealt with by text."
'It's not an issue'
The Western District of Pennsylvania has long been known as a center of judicial thought-leadership, especially when dealing with issues of electronic discovery. In November 2010, it finalized a directory of pre-approved special masters on whom parties seeking discovery-related dispute resolution could call. The court also requires parties to fill out a questionnaire in tandem with the Rule 26(f) conference that prompts practitioners to think through the ESI issues they'll likely face.
That uncertainty around the value of ESI, how to secure it, and its associated costs linger in this progressive district perhaps suggest that those feelings are not unprevalent elsewhere -- and that the phenomenon is more widespread.
Arizona US District Judge David Campbell, a member of the Advisory Committee on Civil Rules, said that, while he can't recall a recent case where the parties agreed to forgo eDiscovery, there are still many cases before him in which parties do not view it as a significant issue.
"I require parties to address eDiscovery at my initial case management conference," he told Logikcull, "but often the parties say it's not an issue or that the relatively small amount of ESI at play can be handled easily by the parties."
"But I am seeing more cases in which eDiscovery is a significant issue," he said. "Experienced counsel in those cases are agreeing upon an eDiscovery protocol for the case, which I usually approve."
Local rules 'eliminate' eDiscovery
The decision to forgo discovery of ESI is explicitly condoned in some courts by way of local rules that include an opt-out clause. Generally, as local and state courts adopt electronic discovery guidelines, many of them patterned after the Federal Rules of Civil Procedure, those clauses are written out. But there are exceptions.
For instance, the commercial division court of Nassau County, despite issuing guidelines for eDiscovery in 2009, allows parties through a preliminary conference form to "stipulate to limit and/or eliminate the discovery of ESI in whole or part and/or to forgo or limit the production of information in electronic form..."
Similarly, until recently, the eDiscovery guidelines for the Delaware Court of Chancery, where some of the country's most important corporate disputes are resolved, allowed for “Parties and their counsel (to) agree with opposing parties and their counsel to limit or forgo the discovery of ESI.”
And there are other courts to which ESI is not native that still retain vestiges of paper-age discovery principles. In Wake County, North Carolina, for example, scheduling orders for equitable distribution (i.e. divorce cases) mandate that discovery "shall be mailed to the opposing party." Whether such rules are still adhered to, or enforced when matters involving ESI arise, is hard to say.
To be sure, the examples of parties waiving eDiscovery duties in complex cases with potentially voluminous ESI are few. But for some, it seems, that option is at least on the table.
And for many others, of course, it is not. When asked if she's seen attempts to opt out of eDiscovery, US Magistrate Judge Kristen Mix, in Denver, answered, "No, the parties are as ravenous for eDiscovery as always."
Robert Hilson is a director at Logikcull. He can be reached at firstname.lastname@example.org.