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The Florida Bar
The Florida Bar Journal
June, 2012 Volume 86, No. 6
Loyalty to the Process: Advocacy and Ethics in the Age of E-discovery

by Margaret Rowell Good

Page 96

In this digital age, approximately 98 percent of all information is created, stored, and modified electronically.2 Yet parties discuss the discovery of electronically stored information (ESI) in less than 30 percent of all federal cases and in less than two percent of all state cases.3 The technological revolution of the last several decades has exposed lawyers, in particular, to new and unexpected challenges in fulfilling their professional and ethical duties.4 ESI’s “high volume, broad dispersal, and dynamic nature” can frustrate effective and economically viable discovery.5 Although the complexity of e-discovery affects all lawyers, e-discovery challenges may more significantly affect lawyers practicing in small firms that lack the benefit of an e-discovery team. Likewise, lawyers whose clients lack the resources to undertake substantial e-discovery may believe they are at a disadvantage. However, by attaining a basic understanding of the underlying technology and pertinent procedural rules, lawyers practicing in small firms can successfully advocate for their clients, minimize costs, and avoid the ethical missteps that have plagued e-discovery in recent history.

While the 2006 amendments to the Federal Rules of Civil Procedure6 and the proposed amendments to the Florida Rules of Civil Procedure7 have the potential to ameliorate many of the problems associated with costs, resource imbalance, and efficiency of e-discovery, before a practitioner can competently execute these rules, the attorney must achieve basic technological competence and understand the importance of cooperation in the management of the discovery process. Accordingly, this article focuses on three subjects: technological competence, e-discovery procedural rules, and the Sedona Conference cooperation principle.

Technological Competence
Because our dependence on electronic devices continues to grow exponentially, ESI affects every case, whether parties acknowledge it or not. As Lawrence Kolin, former chair of The Florida Bar’s Civil Procedure Rules Subcommittee on Electronic Discovery, noted, e-discovery “issues are no longer limited to complex commercial litigation and are increasingly evident in the full range of civil cases.”8 The legal community is beginning to recognize that every practitioner must obtain some level of technological competence in order to meet his or her professional obligations.9

The lack of technological competence has dramatically affected the discovery process. From 2005 to 2010, sanctions in cases involving e-discovery increased dramatically.10 From negligently handing over privileged communications11 to failing to preserve electronic evidence,12 cases abound where counsel, confronted with new electronic discovery challenges, fail to rise to the occasion. Even when the conduct isn’t intentional or willful, courts are increasingly imposing sanctions on parties and, occasionally, on counsel.13 The most egregious e-discovery blunders have resulted in dismissals,14 million dollar sanctions,15 bar association referrals,16 adverse inference instructions,17 and subsequent malpractice claims.18 As a recent malpractice lawsuit suggests, even the largest and most sophisticated firms are not immune to e-discovery disasters.19 Without appropriate technological knowledge and an understanding of the management of e-discovery, an unwary advocate could find himself or herself a party to a malpractice suit or on the receiving end of judicial sanctions.20

Advocates have a duty to provide competent representation.21 When conducting e-discovery, the foundation of competence is basic technological understanding.22 Lawyers practicing in small firms can become competent without expending substantial resources. The eager e-learner will find countless resources available on the Internet. Ralph Losey’s E-Team blog23 and his entertaining animated YouTube videos24 nicely supplement more traditional resources, such as Ralph Artigliere and William Hamilton’s LexisNexis Practice Guide Florida E-Discovery and Evidence.25 The leadership of the Sedona Conference26 and the resources it provides are also invaluable. With new e-discovery software coming onto the market continuously, the savviest practitioners must keep up with new advances in search technology, predictive coding,27 and other cutting edge software and technologies.

After obtaining basic technological proficiency, a lawyer is poised to use both the Federal Rules of Civil Procedure, or, as the case warrants, the proposed Florida rules, to provide professional and ethical representation. In the world of ever-expanding digital information,28 a successful attorney focuses the available time and resources on the evidence most relevant to the case.29 The rules of civil procedure provide judges and counsel tools to effectively manage the amount and scope of discoverable information, thereby diminishing the expense and time burdens associated with electronic discovery.

Undue Burden and Proportionality Analysis
Although historically the scope of discoverable information under both the federal and Florida rules has been broadly construed,30 certain 2006 amendments to the Federal Rules of Civil Procedure, as well as the proposed amendments to the Florida rules, limit the amount of discoverable electronic information. Under Fed. R. Civ. P. 26(b)(2)(B), discovery of ESI may be limited when a party can show the sources of ESI are “not reasonably accessible because of undue burden or cost.”31 Further, federal courts are required to limit discovery if “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.”32 However, if the requesting party can show good cause, the party may still be able to compel discovery.33 The rule “allows judges and producing parties to determine if the requested amount of discovery would be proportional to the matter in controversy or the novelty of the issues.”34

Following the lead of the federal rules, proposed Fla. R. Civ. P. 1.280(d) adopts a proportionality analysis, which allows parties to object to discovery of ESI based on undue burden and expense, but allows the requesting party to obtain ESI that is otherwise burdensome or costly, if the party can show good cause.35 The proposed rule also provides a cost-shifting provision. A court may order “some or all of the expenses incurred by the person from whom discovery is sought be paid by the party seeking discovery.”36 Unlike the Florida rules, the federal rules do not explicitly provide a cost shifting provision; however, some federal courts have ordered the shifting of costs, citing their broad authority to manage discovery.37

The undue burden objection and the proportionality analysis can be particularly helpful when a party is faced with an overbroad production request. Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008), provides an example of the proportionality analysis. To determine the extent the plaintiff’s discovery request was unduly burdensome, the court requested both parties “estimate the likely range of provable damages,” then combine that amount with the plaintiff’s estimated attorneys’ fees to determine an estimated range of the amount in controversy. The court then had a basis for the 26(b)(2)(C)’s proportionality analysis.38 The court also ordered the parties to discuss both the discovery already provided and the discovery still sought to determine if the plaintiffs’ “legitimate discovery needs could be fulfilled from non-duplicative, more convenient, less burdensome, or less expensive sources,”39 and suggested the parties consider “phased discovery.”40

In Linebarger v. Honda of America Mfg, Inc., 2011 WL 3811568 (S.D. Ohio), in a claim under the Employee Retirement Income Security Act, the defendant successfully objected to the plaintiff’s overbroad discovery requests by giving evidence of the unduly burdensome nature of the request. Moreover, the defendant offered to conduct electronic searches tailored to the plaintiff-employee.41 The court denied the plaintiff’s motion to compel, finding the defendant’s proposed “narrowly-tailored approach more palatable.”42 The court distinguished Linebarger from an earlier decision in the same court, Harrold v. BMW Financial Services NA, 2011 WL 597063 (S.D. Ohio), in which the court compelled discovery of electronic information because the “discovery sought was targeted and much more reasonably tailored to the matters at issue in the case,” noting the defendant had not provided “specific examples or evidence revealing the burdensome nature of the plaintiff’s request.”43

As Mancia and Linebarger illustrate, in this brave new world of e-discovery, parties have incentive to pen narrowly tailored production requests that elicit only the most relevant information.44 The requesting party should no longer expect courts to grant motions to compel overbroad discovery requests. In order to manage discovery effectively and save time and expense, the requesting party should, as much as possible, specifically tailor the request to the issues in its case.45 On the other hand, the producing party should object to an overbroad discovery request with specific evidence of the burden the request imposes and propose narrowly tailored solutions to alleviate the burden. Cooperating strategically by offering tailored discovery solutions may give the cooperating party an advantage by allowing that party to manage the discovery process.

A party faced with an overbroad production request may also consider asking the court to shift some of the production costs to the requesting party. In Zubulake I, Judge Scheindlin considered seven factors when deciding whether to shift some of the costs of discovery to the requesting party. The factors include:

(1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared to the amount in controversy; (4) the total cost of production, compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information.46

In an example of limiting discovery and cost-shifting, the court in In re Fosamax Products Liability Litigation, 2008 WL 2345877 at *8 (S.D.N.Y.), restricted the plaintiff’s discovery, noting, “[a]n overarching reason for limitation is plaintiffs’ delay in bringing this issue to the [c]ourt’s attention.”47 The court not only limited discovery, it ordered the plaintiffs to shoulder up to $150,000 of the production costs.48

Likewise, Florida courts have been receptive to shifting costs in e-discovery, even without the enactment of the proposed rule. In Bioment, Inc. v. Fleury, 912 So. 2d 706 (Fla. 2d DCA 2005), the court allowed extensive discovery on the condition that the requesting party agree to pay the costs.49 In Centex-Rooney Construction Co. v. Martin Co., 725 So. 2d 1255, 1261 (Fla. 4th DCA 1999), the court included e-discovery costs in the award of legal costs. In the event the Florida proposed rule is enacted, Florida practitioners from small firms should be especially aware of opportunities to request cost shifting.

Counsel’s Duty to Engage in Responsible Discovery
Fed. R. Civ. P. 26(g) imposes an affirmative duty to engage in all aspects of discovery responsibly by requiring counsel to sign “every discovery request, response, or objection.”50 The three main purposes of the signing requirement are 1) to ensure discovery is conducted responsibly in “the spirit and purposes” of the rules; 2) to curb abuse by requiring courts to impose sanctions upon violation of the rules; and 3) to eliminate “knee-jerk discovery requests served without consideration of the cost or burden to the responding party.”51 Although the Florida Rules of Civil Procedure supply no counterpart for 26(g), Rule 4-3.4(d) of the Florida Rules of Professional Conduct imposes an obligation on counsel not to engage in frivolous discovery.52 The Fifth District Court of Appeal cited this ethical duty when holding an “overbroad production request departed from the essential requirements of the law.”53 According to the court, “parties should fulfill their respective ethical obligations by meeting and working together to reasonably narrow the disputed issues” before bringing discovery issues before the court.54

In the age of exponentially expanding and potentially discoverable information, courts can no longer tolerate overbroad requests or boilerplate objections.55 In Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008), the court characterized Rule 26(g) as “[o]ne of the most important, but apparently least understood or followed, of the discovery rules.”56 During the Mancia discovery hearing, the court expressed concern that the plaintiff’s discovery request was “excessively broad and costly” given the stakes of the case,57 while also rebuking defendants for violating 26(g) by not particularizing their objections to discovery requests.58

If lawyers approach discovery with the proportionality requirement in mind, parties could eliminate the cycle of “knee-jerk” discovery requests inevitably followed by boilerplate objections.59 In fact, one court suggests that “[i]t would be difficult to dispute the notion that the very act of making such boilerplate objections is prima facie evidence of a Rule 26(g) violation, because if the lawyer had paused, made a reasonable inquiry, and discovered facts that demonstrated the burdensomeness or excessive cost of the discovery request, he or she should have disclosed them in the objection.”60

As courts react to discovery abuses, strategic attorneys can gain an advantage by engaging in responsible discovery. Shortly after the litigation hold has been placed, counsel should identify all potential sources of responsive information, keep a detailed outline of the counseling offered to the client and the types of discovery sought, and maintain a list of the custodians of information.61 This documentation provides evidence of responsible discovery practices and can also form the basis for objecting to unduly burdensome requests or for proposing more narrowly tailored searches.

Cooperation and Discovery Conferences
In July 2008, the Sedona Conference — a group of jurists, lawyers, academics, and experts in e-discovery — “launched a coordinated effort to promote cooperation by all parties to the discovery process” by publishing The Sedona Conference Cooperation Proclamation.62 The proclamation grounded its reasoning in economic efficiency and logic.63 By cooperating in the discovery process, an attorney increases efficiency and lowers costs, thereby acting professionally in the best interests of his or her client.64 Through cooperation, the combined duties of zealous advocacy and ethical professionalism are harmonized.65 “Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.”66 As Judge Grimm notes, “However central the adversary system is to our way of formal dispute resolution, there is nothing inherent in it that precludes cooperation between the parties and their attorneys during the litigation process to achieve orderly and cost effective discovery of the competing facts on which the system depends.”67 In fact, cooperation is in the best interest of both parties. Defendants will almost certainly have to produce less, at lower cost.68 Plaintiffs get helpful information more quickly, and without the expense of endless motions to compel.69 Cooperation in discovery begins when attorneys participate meaningfully in an initial discovery conference.

Fed. R. Civ. P. 26(f) requires parties to litigation to meet as soon as practicable after the commencement of the action to discuss discovery, including the discovery of ESI and the forms that should be produced.70 In contrast, Florida’s proposed amendments encourage, but do not require the parties to meet to discuss electronic discovery.71 The Rule 1.280 committee notes suggest parties “consider conferring with one another at the earliest practical opportunity to discuss the reasonable scope of preservation and production of electronically stored information.”72 Perhaps the best way to improve efficiency, decrease costs, and avoid sanctions or malpractice claims is to cooperate with the opposing party in the discovery process. In fact, compliance with the “spirit and purposes” of the discovery rules requires cooperation by counsel in order to “identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionately large to what is at stake in the litigation.”73

Cooperation is especially vital to lawyers practicing in small firms whose clients may have fewer resources. In cases where there is resource asymmetry, cooperation may be the only avenue to a reasonable disposition of the controversy.74 Historically, the party with greater resources used its position as a “key strategic weapon to force the opposition into an unfavorable settlement.”75 However, this advantage loses its luster when the party with greater resources also has more discoverable electronic information and, thus, is potentially subject to a greater burden of production.76 However, because the proportionality requirement and the undue burden doctrine counterbalance the requesting party’s potential to abuse discovery by making an overbroad request, both parties have incentive to cooperate to narrow the scope of discovery.

To be a successful, ethical advocate in this technological age, an attorney must be dedicated to the process. The attorney must be dedicated not only to the process of gaining technological competence, but also to the process required by the rules of civil procedure. As Ralph Artigliere and William Hamilton attest, “a basic understanding of electronic discovery is not an option for litigation, business, family law, and government attorneys: it is required to practice competently.”77 A competent attorney also understands the ethical and strategic importance of cooperation in the discovery process. Undeterred by the innumerable technological changes over the last several decades, the wisdom of Lon Fuller and John Randall endures: The lawyer’s highest loyalty remains to the process.78

1 Lon L. Fuller & John D. Randall, Professional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159, 1162 (1958), quoted in Mancia v. Mayflower Textiles Services Co., 253 F.R.D. 354 (D. Md. 2008).

2 Jason R. Baron & Ralph C. Losey, e-Discovery: Did You Know?, YouTube (Feb. 11, 2010),; see also Robert H. Thornburg, Electronic Discovery in Florida, 80 Fla. B.J. 34 (Oct. 2006) (noting that over 90 percent of business documents are created electronically).

3 Id.

4 Ralph C. Losey, Lawyers Behaving Badly: Understanding Unprofessional Conduct in E-Discovery, 60 Mercer L. Rev. 983, 1005 (2008).

5 Dan H. Willoughby, Jr., Rose Hunter Jones, & Gregory R. Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789, 791 (2010).

6 See Bennett B. Borden, et al., Four Years Later: How the 2006 Amendments to the Federal Rules Have Reshaped the E-Discovery Landscape and are Revitalizing the Civil Justice System, 17 Rich. J.L. & Tech. 1, 5 (2011).

7 See generally Transcript of Oral Argument, In re: Amendments to the Florida Rules of Civil Procedure v. Electronic Discovery, No. SC11-1542 (Fla. Sup. Ct. March 7, 2012); Brief of Petitioner, In re: Amendments to the Florida Rules of Civil Procedure v. Electronic Discovery, No. SC11-1542 (Fla. Sup. Ct. Aug. 9, 2011).

8 Civil Rules Panel to Discuss E-Discovery at Convention, Fla. B. News, July 1, 2010, available at

9 See Fla. Rules of Prof’l Conduct R.4-1.1; see also Proposed Amendments to Model Rules of Prof’l Conduct R. 1.1, cmt. 6 (stating that to maintain competence, “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology”), available at; Robin M. Hulshizer, Legal Ethics in E-Discovery, 20 Prac. Litig. 8, 9 (2011) (advising attorneys to “be well enough versed in the rules of e-discovery and [our] clients’ data infrastructure to be able to discuss preservation, collection, and production issues with our clients, opposing counsel, and the court”).

10 Willoughby, et al., note 5 at 789, 795, 803. In 2005, there were less than 40 e-discovery sanction cases, while in 2009, there were over 90.

11 See First Amended Complaint at 4-5, J-M Manufacturing Co. v. McDermott, Will & Emery, No. B462-832 (Cal. Sup. Ct. Los Angeles Cty. July 28, 2011).

12 See Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 436 (2004) (finding that UBS counsel did not sufficiently communicate a litigation hold and did not determine employees’ document management habits and concluding that UBS acted willfully to spoil evidence by destroying ESI or delaying production); Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., 2005 WL 679071 at *5-7 (15th Cir. Fla. 2005) (finding negligent, grossly negligent, and willful violations, approving an adverse inference instruction and an instruction shifting the burden of proof); see also Kathy Perkins & Dave Deppe, “‘Byte’ Me! Protecting your Backside in an Electronic Discovery World (Not Just for Litigators), 76 J. Kan. B. Ass’n 22, 23 (March 2007).

13 See Pension Comm. of Univ. of Montreal Pension Plan v. Bank of America Sec., LLC, 685 F. Supp. 2d 456, 496-97 (S.D.N.Y. 2010); see also Willoughby, et al., note 5, at 793.

14 See Lee v. Max Int’l., LLC, 638 F.3d 1318, 1319 (10th Cir. 2011).

15 See Kipperman v. Onex Corp., 411 B.R. 805, 824-25 (N.D. Ga. 2009).

16 See Qualcomm Inc. v. Broadcom Corp., 548 F.3d 1004, 1010 (Fed. Cir. 2008).

17 See Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 422 (S.D.N.Y. 2004); Coleman Holdings, Inc. v. Morgan Stanley & Co., 2005 WL 679071 at *7 (Fla. 15th Cir. Ct. 2005).

18 See First Amended Complaint, note 11, at 4-5.

19 Id. at 4.

20 Willoughby, et al., note 5, at 815. In 30 out of 401 e-discovery cases, sanctions were discussed. Sanctions were awarded in 25 cases and deferred in the other five.

21 Fla. Rules of Prof’l Conduct R.4-1.1 (2011); Model Rules of Prof’l Conduct R. 1.1.

22 Even with technological knowledge, when confronted with complex litigation or difficult technical issues, hiring outside experts may be advisable. See Hulshizer, note 9, at 9.

23 Ralph Losey, E-Discovery Team,

24 Ralph Losey, E-Discovery Education,

25 Ralph Artigliere & William Hamilton, LexisNexis Practice Guide Florida E-Discovery and Evidence (LexisNexis Matthew Bender 2011).

26 The Sedona Conference,

27 See Sean Doherty, Judge Peck Addresses Predictive Coding in Federal Court Order, Law Tech. News (February 14, 2012),; Joe Dysart, A New View of Review: Predictive Coding Vows to Cut E-Discovery Drudgery, A.B.A. J. 26-28 (Oct. 2011).

28 See Baron, note 2. From 2002 to 2010, the amount of electronic data in the world increased from five exabytes to 988 exabytes, the equivalent of a stack of books from the sun to Pluto and back again.

29 Perkins & Deppe, note 12, at 32.

30 See Fed. R. Civ. P. 26(b); Fla. R. Civ. P. 1.280(b).

31 Fed. R. Civ. P. 26(b)(2)(B).

32 Fed. R. Civ. P. 26(b)(2)(C)(iii).

33 Fed. R. Civ. P. 26(b)(2)(B).

34 David Degnan, Accounting for the Costs of Electronic Discovery, 12 Minn. J.L. Sci. & Tech. 151, 158 (2011).

35 Gary Blankenship, E-Discovery Rules Sent to the Court, Fla. B. News, August 15, 2011, available at

36 Brief of Petitioner, note 7, at Appx. B-15 (proposed amendment to Fla. R. Civ. P. 1.280(d)(1)).

37 Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280, 284 (S.D.N.Y. 2003); In re Fosamax Products Liability Litigation, 2008 WL 2345877 at *8 (S.D.N.Y.).

38 Mancia, 253 F.R.D. at 364.

39 Id. at 364; see also Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 *7 (E.D. Wis. 2008) (denying a request to produce third-party documents because the requesting party did not show that the documents were not obtainable directly through the third party).

40 Id. at 365.

41 Linebarger, 2011 WL 3811568 at *3-*5.

42 Id. at *2, *6.

43 Id. at *5.

44 See also Compuware Corp. v. Moody’s Investors Serv., Inc., 2004 WL 2931401 (E.D. Mich.) (denying the plaintiff’s request that the court order the defendant to produce fewer documents after the plaintiff made a broad discovery request).

45 See Harrold 2011 WL 597063 at *3; Linebarger, 2011 WL 3811568 at *5.

46 Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 322 (S.D.N.Y 2003).

47 Fosamax Products, 2008 WL 2345877 at *10.

48 Id. at *11.

49 Bioment, 912 So. 2d at 708.

50 Fed. R. Civ. P. 26(g)(1); see also Willoughby, et al., note 5, at 821.

51 Mancia, 253 F.R.D. 357.

52 Life Care Centers of America v. Reese, 948 So. 2d 830, 833 (Fla. 5th D.C.A. 2007).

53 Id. at 830.

54 Id. at 833.

55 Mancia, 253 F.R.D. at 354.

56 Id. at 357.

57 Id. at 356.

58 Id. at 356.

59 Id. at 358.

60 Id. at 359.

61 Hulshizer, note 9, at 12.

62 The Sedona Conference Cooperation Proclamation at 1 (July 2008),

63 Id. at 1. The cooperation proclamation also asserts that the Federal Rules of Civil Procedure require cooperation, however, analyzing that assertion is beyond the scope of this article.

64 Id.

65 Id. For a discussion of the benefits and issues of cooperation in discovery, see Steven Gensler, Some Thoughts on the Lawyer’s E-volving Duties in Discovery, 36 N. Ky. L. Rev. 521, 545-56 (2009).

66 Id.

67 Mancia, 253 F.R.D. at 361.

68 Id.

69 Id.

70 Fed. R. Civ. P. 26(f).

71 Brief of Petitioner, note 7, at 7. The committee elected not to “incorporate a mandatory meet-and-confer rule due to the great variety of litigation in state court, the concern that the requirement could cause delay . . . and the likelihood that many cases will not require the parties to engage in discovery of ESI.”

72 Id. at appx. B-17.

73 Mancia, 253 F.R.D. at 357-58.

74 Borden, note 6, at 21.

75 Id. at 22.

76 Id.

77 Ralph Artigliere & William Hamilton, Electronic Discovery is Here!, Advisor: The Newsletter of Florida Lawyers Mutual Insurance Company, Third Quarter 2011, available at

78 Fuller, note 1, at 1162.

Margaret Rowell Good is a third-year law student at the University of Florida, Levin College of Law. She is the winner of the 2012 essay writing contest for Florida law students sponsored by Florida Lawyers Mutual Insurance Company and the Young Lawyers Division of The Florida Bar. The contest topic was “e-discovery risks and identifying strategies that can help Florida lawyers avoid legal malpractice claims.”

This column is submitted on behalf of the Young Lawyers Division, Sean Desmond, president, and William H. Robinson, president of FLMIC.

[Revised: 05-25-2012]