On November 1, 2011, the United States District Court for the Southern District of New York published a pilot program designed to improve judicial case management of complex civil cases, and reduce costs and delay.   This program has the potential of transforming the judicial standards by which e-discovery conduct will be measured.

The program introduces new procedural rules that emphasize, for cases such as stockholder suits, patent and trademark claims, product liability disputes, multi-district litigation and class actions, mechanisms that are intended to improve efficiency.  These types of lawsuits are described as representing 12-13% of the court’s caseload, according to Judge Shira A. Scheindlin.  But the principles and processes suggested by this program are equally applicable to any civil litigation.

The program, and the final Report available here, is the work product of a full Advisory Committee that included many outstanding lawyers.  Judge Scheindlin has established herself as a leading judicial authority on electronic discovery, so her involvement is meaningful.  While the Committee included subcommittees focused on initial pretrial case management, discovery, motions and the final pretrial conference, the two exhibits to the Report pull the analysis together into two very substantive work products—a proposed Initial Pretrial Conference Checklist and a proposed model Joint Electronic Discovery Submission and Proposed Order. 

Both of these documents communicate the expectations of the court for how and when litigants and their lawyers are to address electronic discovery.  The documents describe in detail what the courts expect in the reports, agreements, and submissions by the parties, and present a robust and fairly rigorous plan for what counsel should be prepared to discuss with the court in the initial pretrial conference under FRCP Rule 16.

What do these documents look like?  How can counsel make sure they have developed a defensible approach? How can a lawyer interact with opposing counsel to meet the explicit expectations of the court for discovery matters to be discussed?  To answer these questions, we decided to produce a RitterMap that transforms the Checklist and E-Discovery Submission into functional tools you can use to navigate the documents visually. 

You can obtain a free copy of this RitterMap by clicking here.  Just a warning—the level of detail on this RitterMap makes it impractical to print onto a single page, but we have succeeded in converting a 38 page report into a single map with which you can see the full picture!

Why is this pilot program so important to understand? 

Here are five reasons.

First, the participation (and quality of participants) emphasizes the resolve of the court to improve the discovery process to achieve more effective justice.  The model Joint Electronic Discovery Submission and Proposed Order (the “Submission”) represents a mature and detailed understanding of the kinds of problems clogging the judicial process and where the courts are pressing litigants toward better collaboration in addressing e-discovery.

Second, the documents expressly require a lawyer to certify to the court they are sufficiently knowledgeable regarding a clients’ technological systems to discuss e-discovery, or have involved someone competent to address these issues on their behalf.  This is perhaps the strongest mandate yet from the Federal courts for lawyers to achieve, or acquire, digital competence.

Third, the Submission is a document that is to be jointly produced and submitted.  Collaboration over e-discovery remains difficult to achieve, as lawyers continue to rely on adversarial “stonewall denials”, “gotchas” and “hide the pea” strategies more familiar to 20^th century litigation.  This Submission requires a detailed analysis by the parties and makes it very difficult for someone to appear at an initial pretrial conference without having attended to all of the topics listed by the Submission.

Fourth, the  model Submission reflect a technology-forward view, directing litigants to focus on the difficult ESI categories, such as instant messages, web site content, blogs, social media, and ephemeral data.  It is clear the courts expect the evidential issues to be understood, analyzed, discussed, and resolved if possible—no more surprises that introduce significant delays.

Finally, the Submission emphasizes counsel has a responsibility to describe, and list, the issues that remain pending.  Once again, this means it will be more difficult for a lawyer to suggest “We have yet to focus on X, your honor”.  Moreover, the Submission contemplates there may be multiple, iterative versions, communicating the court’s expectation that e-discovery is not just a one-issue meeting, but an integral, continuing effort to discovering the evidence of the truth.

This pilot program is important for any litigator or in-house litigation lawyer, regardless of their location, to understand and to rely upon to shape that lawyer’s practice management.  Why?  Quite simply, it is a powerful map for how discovery, including e-discovery, should be discussed as part of the process in any civil litigation, complex or otherwise.  There is simply no reason why other Federal and state courts should not rapidly proceed to implement the same approach for their own respective dockets.

As a practical matter, the Pilot Program is going to place tremendous stress on lawyers still resisting the significance and impact of e-discovery on their litigation strategies.  For some time, lawyers have tried to minimize the need for collaboration, dialogue, and agreement on e-discovery issues.  Now, there is a different consequence—they must be prepared to have their refusals to do so documented and try to craft in writing effective justifications.