in a forward-thinking move (the kind often ignored or buried) the National Center for State Courts has published a breezy 20-page read with the come-hither title: Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (who wouldn’t want to read a document with that title?).
the Guidelines represent the report compiled by the august Conference of Chief Justices and contains such highlights as:
p.8 Responsibility of Counsel to be Informed about Client’s Electronically-Stored Information
p.12 Whether responding party deleted, discarded or erased electronic information
p.15 Record Retention Requirements and sources (see also Sarbanes Oxley Act 404, HIPPA).
according to the drafting committee the Guidelines were intended to
reduce … uncertainty in state court litigation by assisting trial judges faced by a dispute over e-discovery in identifying the issues and determining the decision-making factors to be applied.
and should be
treated as model rules that can be plugged into a state’s procedural scheme and considered along with the resources in the attached bibliography including the newly revised provision on discovery in the Federal Rules of Civil Procedure and the most recent edition of the American Bar Association Standards Relating to Discovery.
LPM RECOMMENDATION: we like the Guidelines and applaud them as a common-sense way of bringing e-discovery and electronic data to the state court level and instill best practices. they represent required reading for court administrators, clerks, judges, and the lawyers who will one day be subject to them. we also support a committee to craft e-discovery rules at the Illinois Supreme Court level.