Shortly after the turn of the century, a series of decisions emanated from the U.S. District Court for the Southern District of New York on the topic of “e-discovery.” Many would argue that Judge Shira Scheindlin’s opinions in the renowned case of Zubulake v. UBS Warburg marked a turning point in modern litigation. Indeed, one might characterize the opinions as causing a seismic shift, ultimately similar in magnitude to adding the concept of discovery to the Federal Rules of Civil Procedure in 1937.
Since Zubulake, a number of jurists around the country have been recognized as “thought-leaders” in this ever expanding sub-specialty of the law. Magistrate Judges Paul Grimm and David Waxse from Maryland and Kansas, and Judge Lee Rosenthal from the Southern District of Texas quickly come to mind. But the Southern District of New York has once again taken center stage, producing the most talked about new law of this decade.
Pilot Project for Complex Cases
On October 31, 2011, the U.S. District Court for the Southern District of New York issued a Standing Order establishing new pretrial procedures designed “to improve the quality of judicial case management” in complex cases. The Standing Order was the culmination of a year-long effort by the district court’s Judicial Improvements Committee, chaired by Judge Scheindlin, and known as the Pilot Project Regarding Case Management Techniques for Complex Civil Cases.
The Standing Order comprehensively addresses all aspects of pre-trial procedure, but includes many provisions of particular interest to the e-discovery community. These include:
- Requiring parties to provide, at the initial pre-trial conference, a “concise overview of the essential issues in the case and the importance of discovery in resolving those issues so that the Court can make a proportionality assessment and limit the scope of discovery as it deems appropriate. The Court may also wish to consider the possibility of phased or staged discovery.” Standing Order at I.B.3.
- Requiring discovery disputes to be submitted to the Court by “a letter of not more than 3 single-spaced pages.” All disputes that are to be raised at the time “must be submitted in a single letter.” (Emphasis in original.) Standing Order at II.B.1.
- Expediting briefing of discovery disputes—with a “responding letter” to be filed within three business days and a “reply” two business days thereafter. Standing Order at II.B.2 and 3.
- In Camera sampling of assertions of privilege in the event of dispute. Standing Order at IIC.
- Identifying documents that presumptively need not be logged on a privilege log, including communications between a party and its trial counsel, work product after commencement of the action, and internal communications within a law firm or within a legal department.
- Streamlining the requisite description of email threads in privilege logs.
The expedited and limited briefing contemplated by the Standing Order may be problematic in the context of e-discovery disputes, which often involve very complex issues. However, the remaining provisions may provide some welcome relief to employers and their counsel. This is particularly true of the emphasis on proportionality and the concept of staged discovery—if only judges take to heart the message to them implicit in that emphasis.
The primary source of all evils associated with e-discovery is volume. Given the ubiquity of electronically stored information (ESI), the notion of “complete” discovery, which underlies rules created for a paper world, no longer works. Yet to date, courts have been loathe to tell a litigant that it has “enough” discovery. Similarly, despite the difficulty of drawing lines between “stages” of discovery, targeting discovery to particular issues that may be determinative of a case, or lead to...
