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Judges, lawyers, and the new rules: it's been four months since the amended federal rules governing electronic discovery took effect. How are they changing e-discovery disputes in the courts? An expert on electronic evidence talks with two current judges and a former judge about what the changes mean from the perspective of the bench.

Article Excerpt
In 2005, the U.S. Judicial Conference, which governs federal courts, adopted amendments to the Federal Rules of Civil Procedure regarding discovery of electronically stored information. The changes were an acknowledgement of the new legal territory. that computers and electronic information have created since the discovery rules had last been amended.

Before the amendments took effect in December 2006, few rules specifically governed electronic discovery. Many lawyers and judges had looked fin advice to The Sedona Principles, guidelines for electronic discovery created by The Sedona Conference, a nonprofit legal research institute based in its namesake Arizona city (see www.thesedona conference.org). Others were guided by developing case law in their respective states.

These changes are now being felt acutely in the nation's courtrooms, where judges are routinely required to adjudicate disputes regarding the production of electronic information. To see the view of the new rules and electronic discovery from the bench, KEN WITHERS, director of judicial education and content at The Sedona Conference, talked with three judges: RONALD HEDGES, U.S. magistrate judge for the District of New Jersey; JOHN CARROLL, dean of the Cumberland School of Law at Samford University in Birmingham, Alabama, former chief U.S. magistrate judge for the Middle District of Alabama, and a former member of the advisory committee on the federal rules; and STEVE LEBEN, a Kansas state district court judge and president of the American Judges Association.

In a wide-ranging discussion, they surveyed the new terrain that lawyers and judges are working hard to map.

WITHERS: What are the most common disputes in electronic discovery?

HEDGES: Ones that we've had all along: first, whether a party has waived privilege through the inadvertent production of privileged materials and, second, whether the scope of discovery requests is too broad. By that, I mean both the temporal scope, in that the requests cover a long period of time, and the geographical scope--for example, whether entity-wide information has to be provided as opposed to information restricted to one particular division of an entity.

LEBEN: I would agree. Privilege becomes particularly complicated in the world of e-mail, as a thread of communication is copied to a variety of parties. With e-mail, the number of possible recipients for a communication and the speed at which they all get it are multiplied.

CARROLL: I agree that the conflicts are the same, essentially, as they were with paper--the defendants say the plaintiffs want too much, the plaintiffs say the defendants aren't giving them what they need. The other issue is cost, which is very different when you're dealing with electronically stored information. Paper just isn't that expensive to produce. With electronically stored information, it's conceivable, depending on how the judge decides to rule, that the production of information becomes very costly and the judge has to decide who pays.

WITHERS: What are the worst mistakes you have seen parties make in electronic discovery?

CARROLL: Lawyers representing to the court things that they couldn't back up. For example, a lawyer saying that a client could do something that the client simply couldn't do.

HEDGES: That is the biggest problem. And I don't know if I would call it a mistake; maybe it's a desire to fulfill expectations that we all have with moving a case along promptly, consistent with Rule 1. It's not unusual for me in a case with a high volume of electronically stored information to be told something can be done by day X, and it takes X plus 120 days.

LEBEN: Whether they represent a requesting or a responding party, attorneys often come into court without a sufficient understanding of the...

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