Electronic and Class Action Discovery
Electronic (or e-) discovery and class action discovery have revolutionized Rule 26 of the Federal Rules of Civil Procedure and its ensuing implementing rules. Electronic communication has become so pervasively the prescribed currency of ordinary business and personal discourse that vast amounts of contemporaneously-created information and documentation that simply did not exist before the electronic communications revolution are now available to shed light on every conceivably relevant aspect of legally significant events. The amount of information that has become available electronically (electronically stored information, or ESI), in turn, is so enormous--and so permanent in character--that an entire jurisprudence is developing around the obligation to preserve metadata, the consequences of failure to do so, the allocation of responsibility between litigating parties to bear the enormous cost of extracting and producing this information and even broader conceptual issues like whether traditional doctrines like the statute of limitations and laches should be adjusted to account for the ubiquity and permanency of metadata.
In tandem with the explosion of jurisprudence relating to electronic discovery has been the creation of similar jurisprudence surrounding the maintenance of class actions. At the forefront of class certification jurisprudence is burgeoning case law and rulemaking regarding the permissible scope of discovery in class actions. What pre-certification discovery is appropriate to determine whether a class is suitable? May pre-certification discovery implicate the merits of a dispute, or must it be restricted to discovery which goes only to the issue of whether the criteria of Rule 23 have been met? Who should bear the burden of expense for conducting this discovery? To what extent is electronic discovery available in putative class actions, and are the operative rules pertaining to the availability of electronic discovery different when discovery can be conducted as to literally thousands of putative class members?
Our course will examine electronic and class discovery comprehensively from the ground up. Our primary textbook will be Scheindlin et al's "Electronic Discovery and Digital Evidence: Cases and Materials, 3d," to be supplemented by cases and materials provided by the instructor to address specific class discovery issues and new and breaking developments in this highly fluid area of the law. In the e-discovery context, we will discuss the components of electronic discovery; the obligation to preserve, collect and produce information and the time when that obligation that begins; the sources of ESI; the principles promulgated by the Sedona Conference which have guided the development of the jurisprudence; judicially-approved techniques for the extraction of this data; and the sanctions for failure to preserve or produce evidence. In the class action context, we will discuss the contours of the discovery rules as they apply to class actions; the limits of relevancy in the class certification context; the jurisprudence which has developed regarding the permissible scope of inquiry at the pre-certification and post-certification stage of discovery; and the unique issues posed by seeking electronic discovery in the class action setting.
Since much of discovery practice pertaining to electronic and class discovery involves weighing competing considerations of relevance on the one hand and burden and expense on the other, the course will emphasize both the theory and the practice pertaining to these forms of discovery.