State trial courts to offer guidelines on e-discovery

With electronic discovery now a fact of life in the federal courts following rule changes that took effect in December 2006, state courts will not be far behind in providing guidelines on discovery of electronically stored information.
The guidelines are the product of the national Conference of Chief Justices, which established an e-discovery task force in 2004 and named Massachusetts Supreme Judicial Court Chief Justice Margaret H. Marshall as its chairwoman.
In August 2006, the conference approved the guidelines, which are intended to provide the nation’s state court trial judges with guidance on addressing e-discovery issues that are surfacing with increasing frequency in their courts.
According to Marshall, trial court chief justices in Massachusetts have received and “welcomed” copies of the guidelines.
“The conference was aware that proposed rule changes were being considered by the federal courts, [but] when we began this initiative, we weren’t sure when the federal courts were going to issue a rule,” Marshall told In-House. “The conference decided to issue guidelines [on e-discovery] so that state courts could have the benefit of collective wisdom until each addresses the subject of rule changes.”
Marshall pointed out that there are some 10,000 state court trial judges in the country, all of whom are subject to different rules and statutes.
The 14-page package of guidelines covers several areas of electronic-document discovery, including agreements by counsel and pre-conference orders; the scope of e-discovery; the form of production; re-allocation of discovery costs; inadvertent disclosure of privileged information; and sanctions.
The full text of the guidelines is available under the Important Documents section of New England In-House’s website, www.newenglandbizlawupdate.com.
In a preface to the guidelines, the conference notes that they are “largely consistent with the revised Federal Rules” but they “also recognize that the final determination of what procedural and evidentiary rules should govern questions in state court proceedings … are the responsibility of each state, based upon its legal tradition, experience, and process.”

‘Too early to know’
Boston attorney Jerome P. Facher, who chairs the SJC’s Standing Advisory Committee on the Rules of Civil and Appellate Procedure, said he believes that e-discovery is not a problem in Massachusetts trial courts at this time.
“I don’t have the feeling at the moment that there are great conflicts about electronic discovery versus paper production,” Facher said. “I know there are lots of companies that are helping parties to produce electronically produced materials,” he added.
Asked if the expense and time of producing such materials are a burden for small clients, Facher said e-discovery “can be burdensome on both small and large clients because the amount of electronically stored material and the cost to retrieve it can be very expensive.” Even paper discovery, he said, “is fiercely expensive when you’re talking about the large case.”
Facher said that while there are currently no e-discovery proposals before the SJC rules committee he leads, the new federal e-discovery rules could be a factor in future consideration of e-discovery at the state level.
“Generally, the federal courts adopt rules ahead of the state courts, and then we watch and see how the rules operate. Sometimes we adopt the federal rules and sometimes not,” he said.
Facher questioned whether there is any urgency to the situation. “I don’t know whether any large portion of the bar thinks there are extended disputes about e-discovery,” he said. “It’s just too early to know.”

The black box
One state judge who has encountered disputes over e-discovery is Superior Court Judge Allan van Gestel, who presides over the Business Litigation Session in Boston.
“What used to be a piece of paper is now a black box,” van Gestel said of the trend toward electronic discovery. “I’m seeing cases where some lawyers will say, ‘We’ll produce our e-mails in paper form,’ and the other side will say, ‘No, we want it in electronic form.’ … It’s not easy – because of the expense, the time, and we’re not particularly sophisticated about this stuff, myself included.”
In his recent experience, van Gestel has observed “a lot of trial lawyers who are now catching onto the idea [of e-discovery], but I think there are only a few who are sophisticated.”
For his part, van Gestel expects that the handling of e-discovery by the federal judiciary in Massachusetts may provide an example for the state’s judges, in that they “informally” might apply procedures that are similar to the federal courts’ policies on the matter.
“The federal courts, particularly the magistrate judges – because they’re the ones who deal with discovery over there, are going to get out in front on this because at least they have a set of rules,” van Gestel said.
Similarly, Haverhill, Mass. attorney Marsha V. Kazarosian, president of the Massachusetts Academy of Trial Attorneys, sees the federal courts offering attorneys some guidance on electronic discovery as they await the state courts’ directions on the topic.
“If you practice at all in the federal court, it would prepare you for what you’re going to have to do in the state court,” she said.