Scott Carlson Quoted in Inside Counsel

The article ("The New Rules: Should you be worried about the e-discovery amendments to the Federal Rules of Civil Procedure?") in the October issue of Inside Counsel magazine highlights the upcoming changes in e-Discovery rules noting "It isn’t often that the Judicial Conference, the most important policymaking body for U.S. courts, revises its rules governing discovery practices. Since the Federal Rules of Civil Procedure became law in 1938, the Conference has altered the rules just six times—twice in the 21st Century. The first time was in 2000, when, on the brink of recommending a series of amendments, the Conference’s Committee on Rules of Practice and Procedure realized it made a terrible oversight—it had failed to address the myriad problems of electronic discovery.   After considerable urging from lawyers and litigants, the Committee decided to dust off the rules and take another stab at making them reflect the reality of new technologies and new types of data. These latest amendments, which the Supreme Court approved in April, go into effect Dec. 1, 2006.    Within the legal community, much ink has been spilled and many words uttered about the doom and gloom of the rules changes." 

Manageable as they are, there are a handful of rule changes that require some careful treading and creative thinking. If addressed properly, some of these changes could even work to the legal department’s benefit. One of the most sweeping changes is an amendment to Rule 26(f), which requires parties to meet within 99 days of the filing to craft a discovery plan. The new language specifically instructs counsel to address electronic discovery at this early juncture, a change that represents an important shift in how parties handle e-discovery. Historically, plaintiffs and defendants have avoided discussing e-discovery until the case was well underway. When e-discovery issues eventually surfaced, it typically meant a one- to two-year detour away from the merits of the case. Now, these so-called “meet and confer” sessions will require companies to reveal where and how they have stored pertinent electronic information, reach preliminary agreements on the form in which they will produce data, address preservation of relevant evidence and agree on procedures for asserting privilege. Accordingly, companies and their legal departments will have to know more about their systems and strategies—and all much earlier in the game. The more legal knows about its company’s data, the more leverage it has to narrow the scope of discovery and save money at the meet and confer stage. If a legal department finds out from IT that it would take one person a full year to review a single custodian’s e-mails, it might share this with the requesting party to work out a compromise. “Real numbers help sober everybody up,” says Scott Carlson, who leads the e-discovery practice at Seyfarth Shaw. “Sit down with your opponent and say, ‘Can we agree on dates that are relevant?’ If they’re sophisticated, they’ll understand it benefits both ­parties.”

At the same time rule 26(f) requires a deeper knowledge of data systems up front, another rule makes this task more daunting. Amended Rule 26(a) adds the category of “electronically stored information” (ESI) to the list of required disclosures parties must make during discovery. Far broader than the earlier rule that required disclosure of “data compilations,” this new language makes room for everything from computer backup tapes to e-mails, instant messages and voicemail. And not all of this information is easy to understand. Experts recommend in-house counsel work with their IT departments to bone up on their companies’ computer and voicemail technologies, learn about file formats and gain a better understanding of metadata, information that conveys an electronic file’s history or tracking. “This used to be the language of litigation support, but it’s going to have to be the language of in-house counsel,” Carlson says. “They don’t have to be experts, but they have to understand it.”