Tennessee Business Litigation Law Blog

An article over at Law.com looks at a significant question facing lawyers in the 21st century: When is it OK to look at the metadata in an adversary's document? The answer is unsurprising (and unsettling): nobody really knows for sure. Metadata reveals information that was not necessarily intended to be saved into the document by the author and/or all others who opened or printed the document by the time it reached the recipient. The Law.com article looks to Bar opinions from the ABA, Maryland, and New York. (The article does not mention the Florida Bar Bar Board of Governors' opinion that reviewing metadata "is something lawyers should not do."

In terms of reviewing metadata, there is a fundamental difference between documents produced by an adverse party that are pertinent to a lawsuit and documents created in litigation by adverse counsel (letters and pleadings sent by email, for example). Any consideration of whether it is appropriate for lawyers to review metadata must take this difference into account.

A recent California federal case illustrates the importance of being reasonable in litigation. The defendant produced electronic documents on a disk in a non-searchable format, meaning the plaintiff could not simply search for relevant text but would have to look at each page individually. The plaintiff apparently spent $25,000 converting the data into a searchable format to make it easier to use. Later, when the plaintiff produced its own documents in a non-searchable format, the defendant cried foul and filed a motion to compel the plaintiff to reproduce the documents in a searchable format. The District Court denied the defendant's motion in part because the defendant had already done the same thing. What's good for the goose is good for the gander.

Discovery disputes over the format of electronic documents are going to become commonplace given the volume of electronic files in business and the wasted time and expense if they are produced in a less useful format. Note that under the 2006 amendments to the Federal Rules of Civil Procedure, the requesting party has the right to select the format for electronic evidence to be produced in. (Found via the Electronic Discovery Law blog.)

Bates stamp numbering documents is typically considered optional.  A New York trial court judge recently issued an order noting that "in matters of [significant] complexity and magnitude, documents produced during the discovery process need to be identifiable by some type of numbering system, e.g., Bates stamp numbering system."  The defendant in the case produced paper documents with Bates numbers, but produced electronic documents without them.  Although there was apparently no prior ruling or local rule on the issue, the trial judge was "greatly disappointed" that the document production "wasn't done correctly in the first place."  The court ordered the parties to produce all documents with a bates number, including requiring the defendant to re-produce all documents previously produced.  Read the order here.

There are two primary driving factors for the recent explosion in electronic discovery. The first is simply the amount of email people send each other these days, and the informality with which they do so. The second is the breadth of material available electronically. Electronic hotel door locks store information that can be used to track down who entered a hotel room and at what time. Microsoft Word and other Office programs store metadata that can reveal who edited a document and how long they spent doing so. One other avenue for discovery: voice mail. LLRX has an insightful article on the discovery of voice mail in litigation. Voice mail is typically recorded on a computer system (for a while, home computers frequently came with voice mail programs pre-loaded). It may be possible to get an audio recording of a voice mail, sometimes even if it has been deleted from the recipient's inbox. Keep in mind that the more time has passed between the deletion of a voice mail and your discovery request for it, the more likely it is to be impossible to recover (or at least too difficult to justify the expense).

(Found via the Trial Advocacy Blog).

John Day posted on Day on Torts this morning about the admissibility of computerized records at trial. According to this law.com article mentioned in the post, a new 9th Circuit Bankruptcy Appellate Panel opinion ups the ante for the testimony required to authenticate and admit computer records. Specifically, the 9th Circuit's decision in In re: Vinhnee, 2005 WL 3609376 (B.A.P. 9th Cir. Dec. 16, 2005) would appear to require more than the traditional proof that the records are kept contemporaneously in the ordinary course of business. Instead, the courts appear to be moving toward requiring competent foundational testimony regarding how the computer hardware and software maintains the data.

The Middle District of Georgia denied a summary judgment motion this month in part because of an adverse inference for possible spoliation of electronic evidence. Morgan v. U.S. Xpress, Inc. is a case for personal injuries arising out of a motor vehicle wreck in which the plaintiff argued that a tractor-trailer cut him off. The defendant denied that any of its trucks was involved, and argued the plaintiff either was in a single-vehicle accident or some other company's truck was involved in the wreck.

The plaintiff asked the defendant company to produce its computer data from its satellite positioning system (presumably GPS). The defendant stated that the data was no longer available, while the plaintiff claimed that it was backed up on tape and destroyed well-after litigation was underway.

The Georgia District Court decided that a reasonable jury could conclude at trial that the defendant's failure to preserve the computer data was predicated in bad faith. The Court therefore denied the defendant's motion for summary judgment. The Court stated that evidence presented by the plaintiff, "when coupled with the adverse inference that may be drawn from U.S. Xpress's possible spoliation of evidence, raises a genuine issue of material fact and allows Plaintiffs to avoid summary judgment."

(Thanks to the Electronic Discovery Law Blog).

The electronic discovery amendments to the Federal Rules of Civil Procedure were approved this month by the U.S. Supreme Court:

On Wednesday, April 12, 2006, the United States Supreme Court approved, without comment or dissent, the entire package of proposed amendments to the Federal Rules of Civil Procedure concerning the discovery of "electronically stored information." The package includes revisions and additions to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35. The proposed amendments were transmitted to the Supreme Court last September, after the Judicial Conference unanimously approved them.

The new rules and amendments have now been transmitted to Congress and will take effect on December 1, 2006, unless Congress enacts legislation to reject, modify, or defer the amendments. The amendments may be accessed on the U.S. Court's Federal Rulemaking website at: http://www.uscourts.gov/rules/newrules6.html#cv0804.

From the Electronic Discovery Law blog.

For more about the 2006 Federal Rules amendments, see this post on document retention policies and sanctions and this post on the adoption of "clawback" agreements by default.

Law.com has an insightful article posted up on the duties of nonparties who hold critical evidence. Parties to a lawsuit, and those who reasonably should anticipate they are likely to become parties to a lawsuit, have a duty to preserve evidence. In some circumstances, that duty includes preventing the routine destruction of evidence, such as by a surveillance system that "tapes over" itself every few days, or an email system that purges old emails every few months. If a company should have actual or anticipated litigation on its mind, the company can be sanctioned for the spoliation of evidence through its routine destruction.

But what about a nonparty? If two of your customers are in the middle of a hostile lawsuit, and you have a mass of relevant emails from both customers, do you face exposure to legal penalties if you don't lock those emails down? According to Law.com, no:

In short, those outside the caption are spared the preservation burdens the combatants bear.

However, that protection likely ends once the nonparty is served with a subpoena for the evidence. At that point, destroying evidence responsive to a subpoena can be punishable by contempt of court.

The New York Times ran a story this week reminding us, once again, that digital data can often be recovered and used in court even after someone has tried to delete it. The Times articles gives one example of a contract where the number "1" was allegedly deleted from a written contract - dropping from the agreed "15%" share to a "5%" share. One can often backtrack through these kind of changes. It does, however, require coordination with not only a technical expert, but also a knowledgable litigator to see that the recovery process is proper to stand up in court. Also from the Times article:

Various software programs can be used to overwrite data. One popular product, Evidence Eliminator, draws a red flag in legal circles.

"I'm still puzzled why someone would use a product of that name," said Michael A. Gold, a senior partner with the law firm Jeffer, Mangels, Butler & Marmaro in Century City, Calif., and a chairman of the firm's Discovery Technology Group. The use of any overwriting software can be detected, tipping off investigators that the person under scrutiny has something to hide.

In other words, if filing or defending a lawsuit appears imminent, bring in a trial lawyer to see that appropriate steps are taken for the courtroom. Otherwise, your best intentions may nonetheless inadvertendly compound a potential problem.

According to the Electronic Discovery Law Blog, the Advisory Committee on Federal Evidence Rules is considering a new rule that would substantially change privilege law. Take a look at this part of proposed Federal Rule of Evidence 502 to be discussed:

(b) Exceptions in general. - A voluntary disclosure does not operate as a waiver if:

...

(2) the disclosure is inadvertent and is made during discovery in federal or state litigation or administrative proceedings - and if the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures, once the holder knew or should have known of the disclosure, to rectify the error, including (if applicable) following the procedures in Fed. R. Civ. P. 26(b)(5)(B); or

(3) the disclosure is made to a federal, state, or local governmental agency during an investigation by that agency, and is limited to persons involved in the investigation.

This would be a huge change. The pending Federal Rules of Civil Procedure amendments largely take care of (b)(2), because inadvertant production does not waive privilege under the new Federal Rules of Civil Procedure. Part (b)(3), though, would go much further - dangerously so - by shielding documents from discovery even if they have been voluntarily provided to an investigative agency. According to the Electronic Discovery Law Blog, the Rules Committee is poised to talk about this at its upcoming meeting on April 24.

Ben Cowgill is hosting a list of links to various information on metadata in litigation in a post called "Making Sense of Metadata." There's a decent number of links to background on what metadata is (FYI: your name, how long you've been editing, and much more are saved in Word documents). Beyond that, though, there's an impressive set of links on the ethical implications of metadata in lawsuits. The most famous (or infamous depending on your point of view) is the Florida Bar Board of Governors' opinion that reviewing metadata "is something lawyers should not do." (Thanks to Between Lawyers for the link).

Data about Metadata

The Modesto Business Law blog has a post up about the importance of well-drafted document retention policies for businesses. This issue is going to become even more prevalent and critical after the December 2006 revisions to the Federal Rules of Civil Procedure go into effect. Under new Rule 37, there is a type of "safe harbor" against spoliation sanctions for the routine, good faith loss of electronic evidence. Pending Rule 37(f) reads:

Electronically stored information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

The Advisory Committee Note clarifies that Rule 37(f) refers to evidence lost because of the operation of a computer system - files that are automatically overwritten without operator input, not necessarily files manually deleted once a month. The Committee Note also makes clear that, if a duty to preserve has arisen, sanctions still may be appropriate if the party does not put on a "litigation hold."

There is a lot of room for a trial court's discretion in pending Rule 37(f), but one principle that businesses should take note of is in the Committee Note:

The steps the party takes to design and implement an effective and appropriate litigation hold are important to determining whether the routine operation of the information system was in good faith.

Clearly, if a business wants to rely on the "safe harbor" aspects of the new Rule, some advanced planning is warranted.

This weekend, the New York Times ran an article on using data from internet service providers in cases. The article anecdotally discusses such evidence in both criminal and civil cases. It's a reminder that very little that touches a computer is ever truly "gone." Well-planned discovery will take into account the materials that can possibly be recovered from other sources, aside from just the opposing party.

The E-discovery Law Blog points to a case that demonstrates one thing: documents are not discoverable just because they are stored in an electronic format, but regardless of whether they are stored in an electronic format. In this case, the defendant subpoenaed all of the plaintiff's emails from her home email account (other than those between the plaintiff and her attorneys). The plaintiff filed a motion to quash, which the court granted on relevance grounds.

The defendant argued that because it appeared the plaintiff had failed to produce all of her personal emails that were responsive to written discovery, the defendant should be able to access all of the plaintiff's emails. Importantly, the court concluded that defendant's contention that the plaintiff had withheld responsive emails was not supported by the record. Therefore, the court did not address whether, on a proper showing that responsive emails have been withheld, a party might be entitled to discover all of an individual's personal emails regardless of whether responsive to specific requests or even relevant to the case.

The pending amendments to the Federal Rules of Civil Procedure that go into effect on December 1, 2006 include a number of changes directed at electronic discovery. New Rule 26(b)(5)(B) basically instills a "clawback" agreement as the default for civil litigation. Under the Rule, if a party realizes that it has inadvertently produced documents that are privileged or work product, the party may put all others on notice and retroactively enforce the protections on the document. Take a look:

(B) Information Produced. If information is produced in discovery that is subject to a claim of privilege or protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.

A new study found that one out of twenty employees has sent company secrets to third parties via email. The study also found that 1/4 forward company email to their personal account, and nearly 2/3 use their personal email addresses for business use.

Two things to take away from this study: first, a company must keep a very watchful eye to protect its trade secrets; second, asking and responding to discovery requires looking beyond just the "@corporation.com" email address.

Morgan Lewis has developed a checklist for use by its firm when discussing e-discovery with a client.

According to the memo distributed to the Morgan Lewis Litigation Team, "[t]he goal of our guidance is twofold: to help our clients develop a plan that is both cost-effective and defensible. While the obligations, resources and record management practices of every client and case differ, this memorandum attempts to outlines the core considerations and steps necessary to prepare an effective electronic discovery management plan."

Morgan Lewis then sets forth a "best practices" plan for managing electronic discovery.

I am confident that the adversaries of Morgan Lewis' clients will be very interested in seeing the "best practice" inquiries Morgan Lewis attorneys makes of its clients in preparing for discovery in litigation.

Arguably the most important question in dealing with electronic discovery is deciding who should pay for it. Considering a broad e-discovery request can cost millions of dollars to respond to, this is not a minor discovery squabble. A number of multi-factor tests have been springing up across the U.S., each designed to determine when the requesting party should pick up the cost of the producing party's efforts in responding to expensive discovery requests. No test has really become the frontrunner yet, so you have to check into your particular jurisdiction's prior decisions.

Out of the Western District of Tennessee, Magistrate Judge Vescovo used the eight factor Rowe test in 2003. The Rowe factors are:

(1) the specificity of the discovery requests; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefit to the parties of obtaining the information; (6) the total cost associated with the production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party.

Take a look at Judge Vescovo's decision in Medtronic Sofamor Danek, Inc. v. Michelson, where he ultimately decided to shift some of the costs to the requesting party.

This article has a brief but exceptionally helpful list of sources for email on computer systems. The most basic gut reaction is to simply log on as an individual and print out their emails from Outlook, Lotus Notes, or whatever email program the person uses. With a little more thought, you would actually check the files on the email server, search them, and save them to an electronic file. Even that will often overlook significant treasure troves of email. Whether you are requesting or responding to discovery of email, it's vital you consider and look to all of the reasonably accessible sources.

There's an old saying: If it's worth doing, it's worth doing right. Print out and keep a copy of the linked article so you can manage discovery - and production - of email appropriately.

The final Sedona Conference Guidelines for Managing Information and Records in the Electronic Age were posted last month. It outlines and details sound principles for businesses to use in maintaining electronic documents on their computer systems. It is a terrific resource for any company that has a lot of computer files that could be important and costly to recover in a lawsuit - in other words, any company. (found via the Electronic Discovery Law blog).

Here is an article about what every business owner needs to know about electronic discovery. This is a good, straightforward piece for those who are most affected by the volume and expense of e-discovery. The nuances need to be digested by the lawyers, but businesspersons need to understand the economic impact on their own bottom line.

Here's a great anecdote about the importance of discovering email evidence. The defendant had a "no shop" agreement in place that prohibited him from negotiating with anyone but the plaintiff until March 5, 2005. In April, the defendant sold to someone else, and the plaintiff sued to block the transfer. The defendant testified that he could not recall negotiating before March 7, 2005, and produced emails that seemed to confirm his testimony. Emails from the buyer, however, revealed discussions as early as 2004. Not surprisingly, the plaintiff's injunction was granted.

This is a perfect example of two things. First, emails are becoming more and more critical in business, and therefore in business litigation. Granted, this isn't a new phenomenon, but it's only getting more prevalent. Second, just because a party says it and produces supporting documents, that does not make it true. You have to be willing and able to dig to find what you are looking for, and must have the support of the liberal rules on discoverability to get it.

(Found via the Electronic Discovery and Evidence blog.)

One of the most challenging aspects of the discovery process today is the sheer volume of it. There is simply so much paper and electronic evidence that a party responding to discovery, or reviewing discovery responses from the other side, can be overwhelmed in determining what is relevant and what is garbage. An article over at law.com looks at an emerging trend - contextual analysis by computers. The goal is to have powerful computers running advanced algorithms to identify these documents for you. While it is becoming increasingly necessary to rely on computer assistance in the discovery and document management process, there is still no replacement for careful review by a knowledgeable attorney in coordination with the client. If the only one in your office that knows all the facts of the case is a computer database, you're in for a rough ride through depositions and trial.

Want to know just how important - and how costly - electronic discovery is... and is going to be? Take a look at the results of this survey on e-discovery. They estimate the revenue from electronic discovery in 2004 was $832.5 million, and by 2007 will hit $2.8 billion per year. I have not had a chance to review the whole report, but it looks to have some good information for lawyers practicing in Tennessee. (From a post over at the Electronic Discovery Law blog).

A follow up to my earlier post about an Arkansas company facing stiff penalties for refusing to comply with court ordered production of documents including email messages and other electronic data. The trial judge ordered the defendants to post a $20 million bond for their non-compliance to date. Last Monday, the Arkansas Supreme Court affirmed trial judge's decision. If you ever needed a reason to cooperate in discovery, or to comply with a judge's orders... this is it. (Found on the Electronic Discovery Law blog).

There's some good advice in an e-discovery article over at law.com. In particular, they suggest preparing a a "not readily accessible" log, akin to a privilege log, early in the litigation. The log should list the resources that might hold responsive information, the information that could be stored on the resource (e.g., Finance Department emails from Dec. 2002-May 2003), and a description of why it practically inacessible. This should be enough to present to the requesting party, and to give the court the information necessary to rule on a motion to compel.

An Arkansas state judge held a defendant in contempt for failing to comply with court orders on production of documents in a nursing home class action. Not only did the judge order the defendants to pay $25,000 in attorneys fees as sanctions, but also threatened jail time:

"On its own suggestion, the Court will take under advisement what additional sanctions, if any, shall be imposed against Defendants, including whether BEI Chief Executive Officer William Floyd, BHRS and BEA Corporate President David Devereaux, or others, should be incarcerated as a result of the Beverly Defendants' contempt of court…"

Read more over at the Electronic Discovery Law blog.

I don't know anything more than I read in the blog post and the Court's order. From that much, it sounds like the defendants played hardball, starting with taking the position that they do not maintain emails in the regular course of business. That's not a real viable position, and in the end they were burned by their own scorched earth tactics. You can avoid such harsh sanctions for e-discovery issues by acting the same as you should in any other litigation dispute: proactive, professional, and forthcoming to the extent possible. And above all else, don't ignore court orders.

Responding to questions regarding e-discovery in a lawsuit should, ideally, begin before you receive the discovery. If your company is involved in a lawsuit, you should start putting the pieces together as soon as you retain outside counsel. The goal is to be able to provide the court with an accurate picture of what information and documents might be out there, and what it would take to produce them in the case. The questions you will likely need to answer are:

• Who are the company personnel whose emails and documents may be pertinent to the lawsuit?
  
• What computer systems store those persons' emails and documents while in use? (Consider the employee's desktop and laptop computers, as well as the company server)
  
• Are there any backup systems that store the emails and/or documents for a period of time? How long, and are any scheduled to be erased or overwritten in the immediate future?
  
• What would be necessary to recover the data from each of those locations?
  
• Is anything scheduled to be destroyed under the company's written document retention policies?
  

A bill has been introduced in Congress to provide a minimum of five years imprisonment for improper document destruction.

Section 6 of the Bill proposes to amend 18 U.S.C. § 1512(c) which currently reads as follows:

"Whoever corruptly--

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both."

Section 6(a)(3) of the bill would strike "or imprisoned not more than twenty years, or both" and insert "and imprisoned not less than 5 years nor more than 20 years."

Hearings have already been held on the Bill.

I recently ran across a great handbook on e-discovery issues, this one over at Lexis' Applied Discovery site. It's a bit dated and promotional, but a good quick resource for your bookshelf. Think of it as "E-Discovery in a Nutshell," because it does not delve as much into the nuances as some of the larger works, but it makes for a nice refresher sheet on the issues you are likely to face. You need to know the legal specifics and some of the technical hurdles more than this pamphlet covers, but as far as reminding you that a party's duty to preserve backup tapes at the outset of litigation generally depends on whether the tapes are purely archival (no duty) or readily accessible (duty exists).

There is a great article on the swell of sanctions and spoliation instructions that we have seen in the last several months in this month's e-Discovery Law & Strategy. (A copy of the article is available for non-subscribers here). The author also gives some good advice for companies and counsel having to produce electronic documents.

Let me take issue with one of the author's points, and it is one that many commentators make: that "when faced with litigation" a company should suspend automatic document destruction policies. Sanctions and spoliation instructions can be issued for destruction of electronic evidence before a lawsuit is filed, when the company is on notice that it might be party to a later suit. Given that backdrop, how often is a company completely litigation free? Most even regional companies are constantly in the midst of or facing some litigation. And e-discovery is becoming so common that you have to consider electronic evidence in most of those cases.

In other words, e-discovery is a near constant issue for companies, not an occassional endeavor. I would suggest that, rather than suspending your document retention and destruction policies when litigation may arise, instead you should incorporate plans for preserving and producing electronic data in those policies. If you have to adjust your plans for a specific case, that is still better than facing a spoliation instruction in a multimillion dollar lawsuit because you did not plan ahead.

One of the great things about e-discovery (from the requesting party's standpoint) is the variety of sources you can pull evidence from. If it has a keyboard or a stylus, there's likely a way you can recover data for evidence at trial. This article talks about instant messaging (IM) software. Some companies have their own corporate IM software that they encourage all employees to communicate in-hose. Some employees install their own IM software in the office or at home to keep in touch with people outside the company. More people are jumping on the bandwagon of using IM to communicate with co-workers, friends and family. One tip: be judicious in requesting production of IM data and other miscellaneous files. Pick specific individuals and timeframes, not "all instant messaging data from every current and former employee" in an international corporation.

Over on the Legal Underground, I ran into a link to a nice ABA roundhouse discussion on e-discovery by a number of lawyers and technology professionals. This is definitely worth a read, if for no other reason than your daily reminder that you will deal with electronic discovery in litigation whether you are ready or not. Kristin Nimsger of Kroll OnTrack gives a great quote:

No longer can parties or their counsel claim to be unaware of digital data. Instead, judges are expecting e-savvy litigators in their courtrooms.

Kristin's point is important - don't expect a continuance for you to start boning up on e-discovery points in the middle of a case. E-discovery is one of those things that you simply have to learn about ahead of time. This ABA article is almost one year old. In that time, the legal landscape around e-discovery has continued to shift, meaning you need to not only learn how to address e-discovery but keep up with the developing law. The technical and legal issues are not going away any time soon.

E-discovery is the buzzword used to refer to discovery of evidence in an electronic format such as computer data. E-discovery is a new twist on an old flavor, as Federal Rule of Civil Procedure 34 currently treats electronic documents the same as paper documents, as does Tennessee Rule of Civil Procedure 34. The kicker in e-discovery is the cost of retrieving and producing the documents. The expenses can mount quickly when pulling data from an archived source such as backup computer tapes, recreating it in a readable format either on a computer screen or on paper, reviewing the material for relevance and privilege, and finally producing the responsive, discoverable documents. You need tech people who are competent to recover the data without destroying or altering it. You need computer equipment to parse and store the data at various stages in the process. You need attorneys to review the mounds of information to make sure that privileged communications are not tucked away on page 20,536 of 500,000 pages.

Take a look at the proposed amendments to the Federal Rules of Civil Procedure presented by the Civil Rules Advisory Committee last month, a copy of which is available at the Electronic Discovery Law Blog. Under the proposed amendments, e-discovery issues are to be discussed early and often. They become part of the Rule 16 initial case management conference. This is exactly the approach to take now to avoid spiraling litigation costs. At the outset of litigation, take stock of your electronic data repositories: Do all of your client's employees have laptops that they take with them? Does your client have a written document retention policy, and are there logs related to the scheduled destruction of documents? Does your client own its own IT department, or are the email and file servers located off-site at an independent contractor? Figure out what you have on your end, what you expect on their end, and how to exchange the information and documents appropriately.

Finally, there is no reason for you to ignore the proposed Rules before they go into effect. Except where there is a direct conflict with the existing Rule, the proposed amendments should be persuasive principles to the bench and bar struggling over e-discovery issues.

The publications of the Sedona Conference are terrific resources for litigators grappling with e-discovery problems. I am aware of six court opinions referencing the Sedona Conference's publications, including four of the seminal Zubulake opinions by Judge Scheindlin. None of the cases (to date) grant any significant authority to the Sedona publications, but the courts have referenced them as informative of the issues involved. I highly recommend printing and keeping a copy of The Sedona Principles for Electronic Document Production in your file cabinet. It makes an excellent resource to turn to in identifying issues on the front-end.