Historical ESI Highlights – Part I

This is the first in a series of blogs on historical developments in civil litigation related to electronically stored information.  The speed of change has been remarkable.  For example, The Hon. John M. Facciola recently asked: “Did anyone get the license plate of the rocket ship that hit me?”[1]

The value of a historical perspective is clear:

• “Knowing the history of e-discovery gives context to the practitioner for a better understanding of the purposes of the current rules and future legal developments.”[2]
• “The history of e-discovery shows that applying traditional rules to emerging technological advances produces, at best, disparate results. It was only through innovative judge-made law and a revision to the Federal Rules of Civil Procedure that this area of the law achieved a measure of uniformity.”[3]

For example, the Federal Rules of Civil Procedure do not define “ESI.”  The historical explanation is concern that technological change would outpace the law. C. Ball, Electronic Discovery Workbook (2019), 47 n. 11.  Knowing the history of the “ESI Rules” can inform the interpretation of the term.

So, how did the term “ESI” enter the Federal Rules of Civil Procedure?

The story seems to begin in 1970, when “the Federal Rules of Civil Procedure … were amended in an attempt to clarify the issue of e-discovery.”[4]  Those amendments made clear that Rule 34 document requests applied to “data compilations.”

Then, in 1996, the ”Discovery Project of the Advisory Committee on Civil Rules” was inaugurated. Richard L. Marcus, “E-Discovery Beyond the Federal Rules,” 37 U. Balt. L. Rev. 321, 329 (2008). Prof. Marcus wrote:

Besides specifics about individual possible rule changes, the overarching theme was that lawyers needed “adult supervision” from judges in the discovery arena….

But there was one big new thing that emerged from those conferences–e-discovery. From the outset of this process of interacting with the bar that began in early 1997, the Committee was told that it was fighting the last war. “The real discovery issue is email,” many said.

However, some suggestions from that time frame continued to fight the last war.  Prof. Marcus  explained further: “A number of people, for example, said that the right approach would be to declare somehow that email is not discoverable.”

That brings us to a 1999 scholarly article.  The Hon. John M. Facciola described the genesis of the ESI revolution.  He wrote:

[T]he revolution began in a law review article entitled Electronic Discovery in Federal Civil Litigation: Is Rule 34 up to the Task?, by Judge Shira A. Scheindlin and her former law clerk, Jeffrey Rabkin…. The central theme of the article was that Rule 34 of the Federal Rules of Civil Procedure, promulgated in 1937, was unequal to the questions that arose in the new world of information technology and that a substantial revision of the rule was in order.

M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), 13 (emphasis added).

In their 1999 article, Judge Scheindlin and Mr. Rabkin suggested that Rule 34 be amended to cover ESI.  Id. at 16.

Next, Prof. Marcus reports that, by 2000, the tide had turned and there were calls to “make it clear that email and other computer information are subject to discovery.” Marcus, “E-Discovery Beyond the Federal Rules,” 37 U. Balt. L. Rev. at 329.

Further study followed. “The Advisory Committee backed off for a couple more years. In September 2002, it wrote to about 250 carefully-selected lawyers nationwide seeking reactions on whether rulemaking for e-discovery would be a good idea.”  Id. at 332. Only about a dozen people responded; however, the Advisory Committee continued its work, and a preliminary draft was published in August 2004. Id.  Comments were received, significant refinements made, and the proposal went forward. Id.

Meanwhile, in 2003 and 2005, The Sedona Conference published “The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Discovery” (2005).  Judge Facciola explained:

A central principle animating the [Sedona Conference] Working Group has been the fear that the costs of electronic discovery might defeat the purpose of the Federal Rules of Civil Procedure as defined by Rule 1, that is, to secure the just, speedy, and inexpensive determination of every action and proceeding.

Judge Facciola noted: “With the work of the Sedona Conference proceeding apace, and more and more judges and lawyers confronting electronic discovery in their cases, the momentum began to modify the Federal Rules of Civil Procedure….” See Managing E-Discovery at 26.

In December 2006, the federal “ESI Rules” went into effect.  Maryland followed suit in January 2008.[5]

Judge Facciola notes that the December 2006 rules changes were modest – – chief among them was the inclusion of ESI in discovery.  The Judge explained:

[I]t is startling how small the changes to the 2006 rules really are. Anyone looking for a revolution in civil procedure will have to look elsewhere.

Managing E-Discovery at 27 (emphasis added).  He also explained that the 2006 Rules did “not speak to the fundamental questions that have proved most intractable….”  Id. The Judge postulated that “this is so because the fundamental philosophy was to encourage counsel, thought to be more knowledgeable than judges, to resolve their differences and to create a mechanism for them to create a discovery plan that would run itself.” Id. at 27-28. Thus, the “linchpin of the [2006] approach” was the Rule 26(f) conference a/k/a the “meet and confer.”

This series of blogs will address some ESI highlights.  Like any summary, I am sure that I will miss or omit many important contributions in this list of highlights. For example, see Doug Austin, Here’s The Most Famous eDiscovery Case (ediscoverytoday.com) (May 20, 2022).  I apologize in advance.

History is important.[6]

_________

[1] M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), 13.

[2] D. Gelb and R. Gelb, “A Historical Perspective of E-Discovery,” Edisc MA-CLE 3-1 (5^th ed. 2020).

[3] John S. Wilson, “Myspace, Your Space, or Our Space? New Frontiers in Electronic Evidence,” 86 Or. L. Rev. 1201, 1219 (2007).

[4] Daniel B. Garrie, Matthew J. Armstrong & Ervin Adler, William R. Burdett, Thomas J. Routt, “Electronic Discovery and the Challenge Posed by the Sarbanes-Oxley Act,” UCLA J.L. & Tech., at 2 (2005).

[5] For a discussion of factors leading to the ESI explosion, see M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 6, et seq., and G. Paul & J. Baron, “Information Inflation: Can The Legal System Adapt?”, 13 Rich. J.L. & Tech. 10 (2007).

[6] After 2006, the next major amendment to the Federal “ESI Rules” was in December 2015.  “[W]hen you look at the history of ESI, it is clear that ESI is changing on a daily basis because we keep developing new toys.” Joshua C. Gillil , Thomas J. Kelley, “Modern Issues in E-Discovery,” 42 Creighton L. Rev. 505, 509 (2009).  For additional history of ESI, see Loren M. Hall, “Evaluating Columbia Pictures Industries v. Bunnell and the Role of Ram Under the Federal Rules of Civil Procedure on E-Discovery,” 5 Shidler J. L. Com. & Tech. 23, 3 (2009); A Brief History of Electronic Discovery – Zapproved; A Brief History of Ediscovery—and a Glimpse of What’s to Come With Collaborative Data | Hanzo – JDSupra; Thomas R. McLean, “Emr Metadata Uses and E-Discovery,” 18 Annals Health L. 75, 92 (2009); Lisa Thomas, “Social Networking in the Workplace: Are Private Employers Prepared to Comply with Discovery Requests for Posts and Tweets?,” 63 SMU L. Rev. 1373, 1374 (2010); and, Burke T. Ward, J.D., LL.M. et. al., “Electronic Discovery: Rules for A Digital Age,” 18 B.U. J. Sci. & Tech. L. 150, 177 (2012).