Civil litigators say a worrisome number of practitioners are in the dark about sweeping electronic-discovery amendments approved last month by the Massachusetts Supreme Judicial Court.
The changes, which go into effect Jan. 1 and will impact state court proceedings in Massachusetts, were recommended by the SJC’s Standing Advisory Committee on the Rules of Civil Procedure in response to the increasing growth of information in electronic form.
Jonathan Sablone, chairman of Nixon Peabody’s digital evidence practice group, said it is “frightening” how few attorneys are aware of the changes even though they will alter the way judges handle issues surrounding electronically stored information, or ESI.
“It’s going to be scary in January and February when people start showing up to court unprepared for these changes, which is what I expect is going to happen in a lot of cases,” Sablone said of what he has been hearing anecdotally. “If you’re a practitioner who hasn’t done a lot of this work, there’s a very steep learning curve because the whole gamut of electronic data preservation, collection, processing and production is going to create a totally new world for a lot of people practicing in Massachusetts.”
Sablone, author of “Massachusetts e-Discovery and Evidence,” said the amendments mark the first major revisions in decades to the state’s Rules of Civil Procedure. The Boston lawyer said they track changes made to Federal Rules of Civil Procedure 26 and 37, which were implemented in 2007 with far more fanfare.
“For people who have been practicing in federal court, this isn’t going to seem like a sea change, but for your average practitioner who’s been handling small and medium size cases in state courts and hasn’t had to have a handle on e-discovery, they’re going to find out that things are going to be a lot different,” he said. “The days of being in Massachusetts state court and ducking the issue with a wink and a nod by just pretending it does not exist are over.”
Among other changes, the rules place a heightened emphasis on focusing on electronic discovery at the beginning of a case through a scheduling conference; addressing how to handle data that may be inaccessible; describing how to deal with inadvertently disclosed privileged information; and providing protections when information is lost in good faith.
“Even the judges are going to be surprised,” Sablone predicted. “All of a sudden they’re going to get on the bench and have a production format fight in front of them for the first time ever.”
Ending the inconsistency
Although the changes have flown under the radars of many lawyers, Neil V. McKittrick of Boston’s Ogletree, Deakins, Nash, Smoak & Stewart said their arrival should not come as a surprise.
McKittrick, a past president of the Massachusetts chapter of the Federal Bar Association, said now-retired SJC Chief Justice Margaret H. Marshall began talking about implementing new electronic discovery rules in state court as far back as 2007.
“There are lots of cases that come to mind where this can be a big deal, like when you are talking about restrictive covenants in the employment context or breach of contract in a real estate deal where the agreement has been negotiated over time,” he said. “Like anything else in the legal system, the more you can predict, and the more you can tell clients what the rules are, the more you can govern everyone’s behavior, and the better off everyone’s going to be.”
Daniel K. Gelb of Gelb & Gelb in Boston, who has written numerous articles on electronic discovery and co-authored a book on the subject, is a longtime advocate of implementing such rules in state court.
“Until now, there has been an inconsistency in terms of how Massachusetts state courts have handled this subject matter,” he said. “Moving forward, we now know that as a procedural matter, e-discovery will be guided by codified rules creating a mechanism to ensure the bench, bar and parties themselves pay proper attention to how they address ESI.”
Although the spirit of the state amendments and the federal rules are the same, Gelb said, lawyers need to be aware of some key differences between the two.
For example, automatic disclosures are required under F.R.C.P. 26 at the federal level. Therefore, litigants must identify custodians of relevant hard copy documents — and, in most cases, electronic — in their disclosures to opposing counsel.
But because the Massachusetts rules do not require initial disclosures, Gelb said, some parties may become anxious waiting for responses to specific discovery requests seeking to determine if relevant custodians have been properly identified and key data has been preserved.
As a result, some attorneys may go to court on an emergency basis to ask judges to get involved in ESI preservation, he said.
Gelb said he can envision parties running to court on motions to compel — which otherwise could be avoided by the parties committing to an ESI plan by rule of the court — in two instances: “If you’re a plaintiff and you’re worried about the discretion [on an e-discovery matter] being left up to the defense, or if you are a defendant and you are worried about the plaintiff not being straightforward with you in the beginning about what you should be preserving.”
Gelb also noted the state rules do not have a corollary provision to F.R.C.P. 26(g)(3), which creates a mechanism to sanction a party who makes a misrepresentation in a certification of discovery. He said lawyers will need to seek relief when appropriate under Rule 11 or ask a judge to impose a remedy through a Superior Court Rule 9C motion.
U.S. Magistrate Judge Robert B. Collings said when the rules were first introduced in federal court, there was concern that they would create onerous new responsibilities on lawyers.
But Collings, who lectures on e-discovery issues around the country, said that did not happen, at least not for those attorneys who followed the requirement of focusing on ESI at the outset of the case.
“What we’ve seen is that these issues can be expensive and can become an absolute nightmare when lawyers don’t organize things in the beginning,” he said. “The whole reason the rules went into effect was because lawyers were either going into a suit not even realizing that ESI was a problem, or not understanding the dimensions of it.”
As the state courts prepare to operate under a similar set of rules, Collings said, his advice to lawyers is to confer with clients and opposing counsel in an effort to arrive at an agreement over how evidence is going to be produced.
“What people will find is that the far greater work will have to be done when they don’t do the planning and don’t go forward in accordance with the rules,” he said. “That’s when it can become a disaster and people can start heading down a road that’s going to cost everyone a lot of money and resources.”