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Using Local Rules to Promote Best Practices for eDiscovery

Michael W. Mitchell
11.26.2014

In the summer and fall of 2014, a small working group met on multiple occasions to discuss and prepare proposed local rules in Wake County for the management of electronic discovery (e-Discovery). The working group included Hon. Paul Ridgeway (Wake County Superior Court Judge), Kellie Myers (Wake County Trial Court Administrator), Frank Benzoni (Smith Anderson) and Mike Mitchell (Smith Anderson).

The vision and purpose of these proposed local rules was to use them as a means to promote “best practices” for the management of e-Discovery by the Wake County Bar. It was the hope of the working group that this effort also might lead the bars of other counties in North Carolina to adopt similar provisions so that there would be a baseline treatment of e-Discovery by attorneys and judges throughout the state. The working group operated on the premise that local rules are an underutilized mechanism to facilitate best practices by the bar, and that local rules can provide a more flexible and timely response to the problems of e-Discovery than the rules of civil procedure and case law.    

The proposed rules, if adopted, will be located within current Wake County Local Rule 5, entitled “Discovery.” All of these proposed rules are additions to the current set of local rules, except that new Rule 5.1 would replace the current version of that rule. The substance of current Rule 5.1, however, is retained in subsection (a) of the proposed rule. 

Conceptually, there are two basic “parts” to these proposed rules.

  1. First, Rule 5.1 (entitled “General Provisions”), would add new rules for all discovery in cases pending in Wake County Superior Court. The reason these general rules are included in the proposal is that they address issues and problems that are particularly relevant for e-Discovery. 
  2. The second part of these proposed rules, Rule 5.7 (entitled “Electronic Discovery”), adds provisions that are, as the title indicates, specific only to e-Discovery.

Rule 5.7 is itself divided conceptually into two principal parts, subsection (a) and (b). Subsection (a) addresses the situation where one of the parties has requested a discovery conference under Rule 26(f)(1) of the Rules of Civil Procedure. When a party invokes Rule 26(f)(1), the case falls into a well-defined track and, therefore, the working group did not add to this track beyond what is set forth in the proposal.

Subsection (b) of proposed Rule 5.7, however, is a different matter. A case falls within this track if no party requests a discovery conference. This may be the most common situation for cases in Superior Court. But that does not mean these cases are free from the problems associated with e-Discovery. The proposed rule imposes mandatory “Default Disclosures” on a party when the party either produces documents in an electronic format or uses electronic means to identify potentially responsive documents. The working group concluded that these mandatory disclosures would reduce additional discovery and the delay occasioned by the need to determine whether the producing party has fulfilled its discovery obligations as to its electronically stored information.  

If a party does not use electronic means to collect or produce documents, then the proposed Default Disclosures are not applicable to such party’s production. The proposal therefore creates no additional burden on those who choose to collect and produce documents without the use of electronic means.

Finally, the proposal includes a rule specifically for Forms, which would allow for an indexing of included forms. The index and references to the forms in the rules then could be “hyperlinked,” so that attorneys could click on a link and jump straight to the form itself. Included are some forms that are useful for managing e-Discovery and its common issues. CLICK HERE to read the proposed rules for eDiscovery.

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Jamie Greene
jgreene@smithlaw.com
T: 919.838.2045

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