The Federal Judicial Center recently published the Sixth Edition of the Benchbook for U.S. District Court Judges. For the first time, the Benchbook includes a section on civil case management, including how to address e-discovery issues. The Benchbook also adds new jury instructions regarding the use of social media and electronic devices by jurors during trials.

The updated Benchbook reflects the impact that technology and e-discovery are having on pretrial litigation and trials. Although the current draft amendments to the Federal Rules of Civil Procedure are still a ways off from being approved, the Benchbook has included recommendations for addressing e-discovery issues which incorporate key concepts found in those draft amendments as well as in existing local federal court initiatives.

Addressing E-Discovery Issues

The Benchbook added the new Section 6.01 on civil case management as the result of a joint request by the Committee on Rules of Practice and Procedure and the Advisory Committee on Civil Rules. This new section emphasizes the judge’s role as an “active case manager” and discusses key e-discovery concepts such as proportionality:

Active judicial case management is an essential part of the civil pretrial process. No party has the right to impose disproportionate or unnecessary costs on the court or the other side. Many parties and lawyers want and welcome active judicial case management, viewing it as key to controlling unnecessary cost and delay.

The Benchbook acknowledges that “[e]xcessive discovery is one of the chief causes of undue cost and delay in the pretrial process,” and that e-discovery alone “is often a source of dispute, excessive costs, and delays.” Accordingly, the Benchbook encourages judges to use the case-management conference to help ensure that discovery “proceeds fairly and efficiently in light of the needs of the case” and not to rely solely on what the parties say in their Rule 26(f) discovery plan. “Even if the parties agree, that does not guarantee that discovery will be proportional or proceed on a timely basis.”

Along these lines, the Benchbook recommends that judges remind the parties that Rule 26(f) requires them to discuss issues relating to the discovery of electronically stored information (ESI) and that judges advise the parties that they will be asked about ESI issues at the Rule 16(b) case-management conference. “While the parties have a duty to discuss the discovery of ESI at their Rule 26(f) conference and include it in the Rule 26(f) report, experience shows that many lawyers do not.” The Benchbook identifies three specific issues relating to ESI that should be addressed during the case-management conference to see if the parties can reach an agreement:

  1. The form in which ESI will be produced;
  2. Whether the discovery of ESI can be limited to certain sources or custodians; and
  3. What search terms or methods will be used to find responsive ESI.

Proportionality

The Benchbook also recommends that federal judges remind the parties that current Civil Rules 26(b) and 26(g) require discovery to be proportional to the needs of the case and that judges advise the parties that they will be asked about proportionality at the case-management conference. According to the Benchbook, “parties are not entitled to all discovery that is relevant to the claims and defenses. The judge has a duty to ensure that discovery is proportional to the needs of the case.”

Pursuant to Rule 26(b)(2)(C), a judge “must limit discovery that would be ‘unreasonably cumulative or duplicative’ or when ‘the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.’”

The Benchbook suggests that judges consider these techniques for imposing proportionality limits on discovery:

  • Limiting the number of depositions (or their length), interrogatories, documents request and/or requests for admission;
  • Identifying whether discovery should initially focus on particular issues that are most important to resolving the case;
  • Phasing discovery so that the parties initially focus on the sources of information that are most readily available and/or most likely to yield key information (i.e., guide the parties to go after “low hanging fruit” first);
  • Limiting the number of custodians and sources of information to be searched;
  • Delaying contention interrogatories until the end of the case, after discovery is substantially completed; and
  • Otherwise modifying the type, amount, or timing of discovery to achieve proportionality.

Preservation

The Benchbook also recommends that judges explore whether the parties have discussed the preservation of discoverable information, especially ESI. If there are disputes, judges should resolve them quickly to keep the case on track and avoid spoliation issues later. “The principles of reasonableness and proportionality that guide discovery generally apply.”

Cooperation

The Benchbook also embraces the concept of cooperation during the discovery process: “The discovery process is adversarial in the sense that the adversaries make choices about what information to seek and how to seek it. But that does not mean that lawyers cannot cooperate or that they must act in a hostile and contentious manner while conducting discovery.” According to the Benchbook, judges should advise the parties that they “expect them to be civil, to find ways to streamline the discovery process where possible, and to avoid needless cost and delay.”

Evidence Rule 502 Non-Waiver Orders

The Benchbook also notes that many parties still are not aware of the availability of a “non-waiver order” under Federal Rule of Evidence 502(d). “This order, which does not require party agreement, precludes the assertion of a waiver claim based on production in the litigation. It avoids the need to litigate whether an inadvertent production was reasonable.” Accordingly, the Benchbook recommends that judges consider entering a non-waiver order as a means “for reducing the cost of discovery by reducing privilege review.”

Last year, the Advisory Committee on Evidence Rules sponsored a symposium regarding Federal Rule of Evidence 502(d), which is discussed in the March 2013 issue of the Fordham Law Review. The purpose of the symposium was to address the lack of use of Rule 502 by courts and litigants. As part of the symposium, the participants collaborated in drafting a Model Draft of a Rule 502(d) Order.

Jury Instructions Regarding Jurors’ Use of Social Media and Electronic Devices

In addition to adding a new section on e-discovery, the Benchbook also added suggested jury instructions regarding the use of social media and electronic devices by jurors. During the preliminary instructions to the jury, the Benchbook recommends that federal judges provide this instruction:

Now, a few words about your conduct as jurors.

* * *

I know that many of you use cell phones, Blackberries, the Internet, and other tools of technology. You also must not talk to anyone at any time about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through email, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube.

You may not use any similar technology of social media, even if I have not specifically mentioned it here. I expect you will inform me as soon as you become aware of another juror’s violation of these instructions. A juror who violates these restrictions jeopardizes the fairness of these proceedings, and a mistrial could result, which would require the entire trial process to start over.

The Benchbook also suggests that judges give a similar instruction at the end of a trial:

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry, or computer; the Internet, any Internet service, or any text or instant messaging service; or any Internet chat room, blog, or website, such as Facebook, MySpace, LinkedIn, YouTube, or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict. In other words, you cannot talk to anyone on the phone, correspond with anyone, or electronically communicate with anyone about this case. You can only discuss the case in the jury room with your fellow jurors during deliberations. I expect you will inform me as soon as you become aware of another juror’s violation of these instructions.

These recommended instructions reflect the results of a survey regarding juror use of social media and are taken from “Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case,” prepared by the Judicial Conference Committee on Court Administration and Case Management in 2012.