ACC San Diego Featured Article – "Buckle-up California"

(From ACC “Focus on San Diego”)

Buckle-up California
Written By Micah Kasdan ([email protected]) 

Earlier this year, the government postponed the Digital TV Transition rollout by six months to allow for a significant amount of viewers to upgrade their television set-ups. One reason was that a lot of older and lower income citizens were about to lose their television access which is a major resource for the Emergency Broadcast Network. This was a perfect example of technology outgrowing those who rely on it. Similarly, something of this very nature is playing out in the California Courts system.

On December 1st, 2006, the Federal Rules for Civil Procedure was amended to specifically address the handling of Electronically Stored Information (ESI). Since that time, attorneys and their clients have been wading through the ambiguity of these rules. Sanctions aplenty, legal practitioners have been learning the hard way how to keep aggressive opponents and opinionative judges content. Time and again, the lessons learned are fairly simple:

• Keep a transparent approach to handling data

• Handle data with kid gloves (never delete/alter anything without an approved approach)

• Understand the Rules and follow them

• Always consult eDiscovery professionals before making judgment calls on perceived best practices

Generally speaking, many practices have become quite effective at approaching ESI productions. In fact, the mere presence of ESI has significantly altered the strategic approach to discovery. Many of these practices are based at law firms with a national footprint. Here, they have had the resources and money to add technology and personnel to help grind out the eDiscovery process and yield positive results. With having access to watch the progress of federal court practices, one might deduce that California practitioners had advantages with the State’s wait-and-see attitude. Unfortunately, this couldn’t be further from the case.

In a town like San Diego, many talented and competent attorneys practice in the California Courts system alone. They tend to have smaller budgets than those of the national opponents and many have put off learning this new part of the game. Just like the last breath of relief sighed in February when the Digital TV Transition date had been postponed, many California attorneys felt the relief when Governor Schwarzenegger vetoed a previous measure to amend the civil procedure rules for handling ESI. Sadly enough, there is still a strong contingent of practices that is no more prepared to address this elephant in the room than they were in December of 2006.

Recently, there have been growing concerns amongst local attorneys that they may not be ready to face this sleeping dragon. The first concern is that they are simply not prepared. More alarming to some, however, is that they regularly oppose national counsel. After 2 years of difficult lessons learned, these opponents are ready to attack. They have faced their fears of sanctions and they have trained their clients to be prepared for the invasiveness and costs of litigating in the information age. They have used the rules to their advantage and they know how to size up a rookie. But there are some saving graces.

Right now, there are very hungry attorneys, consultants and vendors that are excited to share a piece of this new pie. They have worked for, and with, the national firms on the national cases. They have proven their approaches and they are ready to hold some more hands. And, conveniently, the costs associated with this assistance are cheaper than ever. These pending changes are probably only months away. The smart ones will heed all of the warnings and embrace what is to come. The rest will start to build the State’s ESI case law library soon enough.