All-inclusive Mandate Lawyers are facing an expansion of federal discovery rules. Although the new rules mandate discovery, they nevertheless narrow the breadth of what needs to be produced to claims and defenses, says Portland, Ore., litigator Dennis Rawlinson. If anything, it s good news that at least the breadth of discovery has been narrowed with the new rules. Still, he adds, there likely will be battles between opposing counsel over which electronic documents are covered. For litigators, that means instructing clients not only about e-mails but all electronically stored data that could end up in discovery, such as case management files, billing records and calendars.
Electronic discovery poses another problem, especially in cases involving technology businesses.
Trade secrets and other privileged data often reside on the same hard drives and computer disks as a company s discoverable information. The last thing you want is your competitors getting into that. I often hear that the goal of a suit was to get at the other side s trade secrets. Ask the judge for case management orders, Sobel says, to limit the scope. Rothstein recommends having a neutral third party analyze electronic files involved in a case.