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Federal Judges Get New Resource on Electronic Discovery

Oct. 5, 2017, 11:32 AM

By Michael Greene, Bloomberg BNA

Federal judges have a new resource that can help them tackle discovery issues related to electronically stored information.

The Federal Judiciary Center (FJC) Sept. 20 issued a third edition of its“Managing Discovery of Electronic informationpocket guide for judges.

The new edition provides judges with updated guidance on how to manage discovery issues, in light of the growing number of ESI sources.

It also includes changes that take into account the 2015 amendments of the Federal Rules of Civil Procedure. It’s a timely update that deals with some of the issues that have emerged in the last few years, Ronald Hedges, senior counsel at Dentons in New York, told Bloomberg BNA.

Since the last edition the number of sources of ESI has greatly expanded, and social media has become a common source of discoverable information in various types of civil litigation, he said.

Hedges, a former magistrate judge for the U.S. District Court for the District of New Jersey, co-authored the pocket guide along with Senior U.S. District Judge Barbara Rothstein and Elizabeth Wiggins of the FJC.

The FJC, the research and education agency of the federal judicial system, last updated the pocket guide in 2012.

The pocket guide, which is organized in question-and-answer format, provides some practical tips for judges that include:

• encouraging attorneys and their clients to address ESI issues at the earliest stages of litigation;

• considering case management techniques in smaller civil actions, such as allowing discovery disputes to be presented in an informal manner pursuant to Rule 16(b)(3)(B)(v);

• making sure lawyers use search methods and criteria that are cost-effective and proportional to the discovery needs of the case;

• ensuring that parties discuss the form or forms of production at the Rule 26(f) conference.

The guide also encourages judges to actively manage the discovery process where ESI is involved, using the “many tools” at their disposal—"case-management conferences and orders, limits on discovery, tiered or phased discovery, sampling, cost shifting, and, if necessary, sanctions.”

To contact the reporter on this story: Michael Greene in Washington at mGreene@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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