Southern District of New York Implements Pilot Program to Require Early Identification & Resolution of E-Discovery Issues in Complex Cases

The Judicial Improvements Committee of the Southern District of New York issued a report announcing the initiation of a Pilot Project Regarding Case Management Techniques for Complex Civil Cases (the “JIC Report”) in October 2011. The pilot project, which became effective on November 1, 2011, is designed to run for 18 months and for now, applies only to specific matters designated as “complex cases.” The project, which seeks to enhance the caliber of judicial case management, arose out of recommendations from the May 2010 Duke Conference on Civil Procedure and E-Discovery. This blog posting focuses on that portion of the pilot program devoted to the discovery of electronically stored information (“ESI”).

For these designated cases (which include class actions, MDL actions, patent & trademark, product liability, securities, stockholder, antitrust and environmental cases), parties are required to submit, no later than 7 days before the initial pretrial conference, an initial report containing a “protocol and schedule for electronic discovery, including a brief description of any disputes regarding the scope of electronic discovery.” Similarly, parties are required to provide, among other things, “[a]ny recommendations for limiting the production of documents, including electronically stored information.” The JIC Report attaches an initial pretrial conference check list as Exhibit A and a joint electronic discovery submission and proposed Order as Exhibit B.

The form Joint E-Discovery Submission (“the Submission”) requires counsel to certify that they are sufficiently knowledgeable about their clients’ technology systems and can discuss issues concerning electronic discovery or, if not, have involved a competent person to address those issues. The Submission provides several categories for the parties to address prior to the preliminary conference, including, among other things: (1) preservation obligations, (2) search and review protocols, (3) sources of ESI production, (4) forms of production, and (5) cost allocation.

With respect to preservation, the parties are to agree on the scope and methods for preservation and discuss whether to disclose the dates, contents and recipients of “litigation hold” notices. The parties are required to discuss methods for search and review, including potential keyword searches, date restrictions, and whether backup files should be searched. In discussing the production of electronic documents, the parties should confer about the format for production (e.g., native, TIF), the timing of productions and the number of expected custodians. Parties must also address the issue of privileged material, inadvertent production/claw-back agreements and whether the parties have discussed a Rule 502(d) order (which have been addressed in other blog submissions). Click here for Rule 502/clawback blog posts, here for inadvertent production blog posts and here for inadvertent disclosure blog posts. The Submission also asks the parties to estimate the cost of electronic discovery and address any cost-shifting or sharing agreements. In recognition of the fact that knowledge concerning e-discovery issues and obstacles may develop during the case, the Submission contemplates that additions and modifications may be required.

Attorneys may anticipate a more in-depth inquiry concerning e-discovery from the federal bench during the pilot program and should be prepared to discuss these issues with their clients, opposing counsel and judge at the outset of the litigation. For more information on other parts of the pilot program, including motion and final pretrial conference procedures, click the Report and the Gibbons Business Litigation Alert.

Paul A. Saso is an Associate on the Gibbons E-Discovery Task Force.