administrative order 2018-79; Sample Order for Permitting Electronic Equipment into the Courtroom; Standing Discovery Order; Guidelines for Professional Conduct; 2015 Year-End Report on the Federal Judiciary; Order Setting Discovery Status; Florida Law Review article on e-discovery by U.S. Magistrat

=== Sample Order for Permitting Electronic Equipment into the Courtroom ===

ORDER GRANTING JOINT MOTION FOR LEAVE TO BRING ELECTRONIC EQUIPMENT INTO THE COURTROOM FOR PRIOR ACCESS TO THE COURTROOM TO SET UP SUCH EQUIPMENT The Court has considered the Motion to Bring Electronic Equipment to Court and being otherwise duly advised herein, it is hereby ORDERED AND ADJUDGED that the Joint Motion to Bring Electronic Equipment to Court is hereby GRANTED as follows: Counsel for Plaintiffs, Legal Assistants and Technology Consultants: 1. (Name) – two laptop computers, including the appropriate cables and/or converters, cellular phone and charger. 2. (Name)- laptop computer, cables and/or converters, cellular phone and charger. 3. (Name)- cellular phone. Counsel for Defendants, Legal Assistants and Technology Consultants: 1. (Name)- laptop computer, cellular phone and charger. 2. (Name)- laptop computer, including the appropriate cables and/or converters, cellular phone and charger. The Parties further respectfully request that they be permitted to have access to the Courtroom one hour prior to the Hearing to set up their equipment if the Courtroom is not otherwise in use or at another time of convenience for the Court and its staff. This will enable the Parties to have an opportunity to set up and test the equipment so that the Court is not delayed in starting the hearing. A Proposed Order is also being submitted to the Court. DONE AND ORDERED in chambers, in West Palm Beach, Florida this ___ day of ____, 2019. BRUCE REINHART UNITED STATES MAGISTRATE JUDGE

=== Standing Discovery Order ===

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No: Plaintiff, , v. , _____________________________________/ Defendants. STANDING DISCOVERY ORDER FOR MAGISTRATE JUDGE BRUCE REINHART The following procedures are designed to accomplish civil discovery without undue delay and unnecessary expense. The Court may impose sanctions for non- compliance with these procedures. I. GENERAL DISCOVERY PRINCIPLES A. Rule 26(b)(1) – Relevance and Proportionality Federal Rule of Civil Procedure 26(b)(1), as amended on December 1, 2015, defines the scope of permissible discovery: Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). An objection based on relevance or proportionality must include a specific explanation describing why the request lacks relevance and/or why the requested discovery is disproportionate in light of the factors listed in Rule 26(b)(1). B. Non-Waiver Discovery is a dynamic process. What is relevant or proportionate or cumulative or unduly burdensome can change as a case moves forward. The Court recognizes that a party may be unwilling to compromise its position on a particular discovery request because of concern that the concession will be deemed to waive a future objection or a future demand for related discovery. To eliminate this concern, the Court evaluates all discovery requests and responses individually. Therefore, by responding, in whole or in part, to a discovery request, a party does not waive any objection to a future request. Likewise, by agreeing to limit a discovery demand, a party does not waive its right to seek additional discovery in the future. Parties need not serve a response or objection that specifically reserves their rights or disavows a waiver. II. DISCOVERY PROCEDURES A. Deposition Scheduling Parties are expected to confer in good faith to schedule depositions at times convenient for all parties. If the parties cannot agree on a date after reasonable conferral, the requesting party may unilaterally schedule the deposition, with the notice required by Local Rule 26.1(h). The burden then shifts to the deponent to move for a protective order. S.D. Fla. L.R. 26.1(h). Page 2 of 16 B. Rule 26(g) Certification Federal Rule of Civil Procedure 26(g) requires a lawyer or party requesting discovery, responding to a discovery request, or objecting to a discovery request to sign the relevant pleading. Fed. R. Civ. P. 26(g). The signature “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry” (1) any required disclosures are complete and correct and (2) any request, response, or objection is (i) consistent with the Federal Rules of Civil Procedure (including the proportionality requirement of Rule 26(b)(1 , (ii) not for an improper purpose, such as delay or needless increase in litigation cost, and (iii) not otherwise unreasonable “considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.” Id. Rule 26(g) imposes an affirmative duty on counsel to conduct a reasonable inquiry prior to serving discovery or objecting to discovery, and to conform discovery to what is reasonably necessary to the case at hand. For a party responding to a discovery request, “Rule 26(g) does not require a comprehensive search of all possible locations where responsive evidence may be found. Nor does it require a perfect or even optimal search. It requires a ‘reasonable’ inquiry.” In re Zantac (Ranitidine) Prod. Liab. Litig., No. 20-MD-2924, 2021 WL 5299847, at *4 (S.D. Fla. Nov. 15, 2021). C. ESI Searches The Court does not rule on ESI search disputes in advance. The parties should confer to try to reach agreement on what data will be collected and searched, and the search methodology (including, if appropriate, search terms). If they cannot agree, the Respondent should unilaterally conduct a search using its chosen search Page 3 of 16 methodology and data sources. The Requester can then challenge whether the Respondent conducted a “reasonable inquiry” that complied with Rule 26(g). The Court may allow limited “discovery on discovery” to inform whether the search complied with Rule 26(g). D. Instructions to the Responding Party A party propounding discovery cannot unilaterally impose legal obligations on the respondent through Instructions. Any Instruction that purports to impose a duty other than those mandated by the Federal Rules of Civil Procedure or the Local Rules of this Court has no legal effect. E. Production at an Indeterminate Time It is a common practice to respond to Requests for Production by saying that the party will produce, or make available for inspection, responsive materials at an indeterminate future date. This kind of statement is not an acceptable response. Federal Rule of Civil Procedure 34(b)(2)(B) says that a production must be “completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” Fed. R. Civ. P. 34(b)(2)(B). Unless all unobjectionable materials are being produced contemporaneously with the written response, the response must specify a date by which production will be completed; the respondent may adopt the date proposed in the request or may propose its own reasonable time, after consultation with opposing counsel. The Court strongly encourages parties to engage in rolling production of documents. If a rolling production is to occur, the parties shall confer about a Page 4 of 16 production schedule, including the order in which categories of documents will be produced, and a good faith estimate of the date by which production will be completed. Whether by rolling production or otherwise, a final production date more than 30 days after the response deadline (i.e., generally 60 days after the request is served) is presumptively unreasonable under Rule 34(b)(2)(B). That being said, the parties will be in the best position to assess the timing of discovery in a particular case. Therefore, the parties may agree to a longer period for production, without leave of Court. In the absence of agreement among the parties, if the production will not be completed within 30 days of the response deadline, a motion for enlargement of time should be filed by the responding party. The motion shall include a good cause explanation for why production cannot be completed within that time period, and a proposed schedule for completing the production. The opposing party shall respond within 72 hours. F. Rule 26(c) – Protective Orders Federal Rule of Civil Procedure 26(c) permits the Court to enter a protective order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). A motion seeking relief under Rule 26(c) must include a specific explanation, supported by facts, demonstrating how complying with the discovery request would cause annoyance, embarrassment, oppression, or undue burden or cost. The Court will reject a conclusory unsupported statement that Rule 26(c) relief is warranted. See S.D. Fla. L.R. 26.1(g)(3). Page 5 of 16 G. Requests for Sanctions Any request for sanctions (including fees or costs associated with discovery) must be by separate motion. Leave of court is not required prior to filing a sanctions motion. Any such motion must state the rule or statute that justifies sanctions and the specific remedy being requested. III. DISCOVERY OBJECTIONS A. Identifying Withheld Materials Objections to Requests for Production must “state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C). When a party asserts a discovery objection, the Court assumes that a Rule 26(g) compliant search has been conducted and that responsive materials exist. If a party interposes an objection and later asserts that no responsive documents exist, the Court will impose sanctions. If a party asserts that it would be too burdensome to search for responsive materials, the objection should make clear that no search has been conducted and explain why a search would be unduly burdensome. B. Boilerplate or General Objections The parties shall not make nonspecific, boilerplate objections. See, e.g., S.D. Fla. L.R. 26.1(e)(2)(A) (“Where an objection is made to any interrogatory or subpart thereof or to any production request under Federal Rule of Civil Procedure 34, the objection shall state with specificity all grounds.”). The parties also shall not make general objections that are not tied to a particular discovery request. The Court will strike these general objections. Page 6 of 16 C. Vague, Overly Broad, and Unduly Burdensome Objections that state that a discovery request is “vague, overly broad, or unduly burdensome” are, standing alone, meaningless, and will be stricken by the Court. If a party believes that a request or a term is vague, that party must first ask for clarification from opposing counsel prior to objecting on vagueness grounds. If the requesting party does not clarify the request, the responding party should unilaterally define the allegedly-vague term and respond accordingly. For example, “Defendant construes the term ‘___’ to mean ‘______.’ Consistent with that definition, Defendant is producing _____.” An objection that a discovery request is “overbroad” is ambiguous. If the objecting party asserts that the request seeks materials that are not relevant, the objection should say so. Alternatively, if the objector asserts that the request seeks materials that are relevant but excessive or cumulative, the objection should state that the request is disproportionate. If a party believes a discovery request seeks irrelevant information, is disproportionate, or is unduly burdensome, that party shall confer in good faith with opposing counsel to narrow the scope of the request before asserting these objections. The objecting party nevertheless shall respond as to those matters for which the scope or burden is not contested. For example, if there is an objection based upon the scope of the request, such as time frame or geographic location, discovery should be provided as to the time period or locations that are not disputed. Thus, if discovery is sought nationwide for a ten-year period, and the responding party objects on the Page 7 of 16 grounds that only a five-year period limited to activities in the State of Florida is appropriate, the responding party shall provide responsive discovery falling within the five-year period as to the State of Florida. A party objecting on any of these grounds must explain the specific and particular way in which a request is vague, seeks irrelevant information, is disproportionate, or is unduly burdensome. See Fed. R. Civ. P. 33(b)(4) and 34(b)(2)(B); see also Dem. Rep. Congo v. Air Capital Grp., LLC, No. 12-CIV-20607, 2018 WL 324976, at *3 (S.D. Fla. Jan. 8, 2018) (J. Torres) (quoting Sallah v. Worldwide Clearing LLC, 855 F. Supp. 2d 1364, 1376 (S.D. Fla. 2012) (J. Rosenbaum (“‘A party objecting on these grounds must explain the specific and particular way in which a request is vague, overly broad, or unduly burdensome. In addition, claims of undue burden should be supported by a statement (generally an affidavit) with specific information demonstrating how the request is overly burdensome.’”). D. Formulaic Objections Followed by an Answer A party shall not recite a formulaic objection followed by an answer. It has become common practice for a party to object to a discovery request, and then state that "notwithstanding the above," the party will respond to the discovery request, subject to or without waiving such objection. “Objecting but answering subject to the objection is not one of the allowed choices” under the Federal Rules of Civil Procedure. Spadaro v. City of Miramar, No. 11-61607-CIV, 2012 WL 12862641, at *4 (S.D. Fla. Apr. 25, 2012) (J. Seltzer) (citation omitted). Such a response improperly leaves the requesting party uncertain as to whether the discovery request (as propounded) has Page 8 of 16 been fully answered, whether the response relates only to the request as unilaterally narrowed by the responding party, and whether the responding party is withholding any responsive materials. See Consumer Elecs. Ass'n v. Compras & Buys Magazine, Inc., No. 08-21085-CIV, 2008 WL 4327253, at *3 (S.D. Fla. Sept. 18, 2008) (J. Simonton). For a Request for Production, the proper practice is to (1) state whether documents are being provided in response to the request and identify those documents by sequential number or category, and (2) state whether any responsive documents are being withheld, and if so the specific legal basis for that objection. See Fed. R. Civ. P. 34(b)(2)(C) (objection must “state whether any responsive materials are being withheld on the basis of that objection”); S.D. Fla. L.R. 26.1(e)(6) (“Each page of any document produced in a non-electronic format must be individually identified by a sequential number that will allow the document to be identified but that does not impair review of the document.”). Samples of proper objections include: Defendant is providing documents marked as Defense 1–250, as well as a USB drive containing emails for the following custodians in native format: ______. Defendant has identified other documents which are responsive to the request as propounded, but Defendant asserts that those additional documents are irrelevant to the claims and defenses in this matter because _____. Plaintiff is providing documents marked as Plaintiff 1–100. Plaintiff has identified other documents which are responsive to the request as propounded, but Plaintiff asserts that production of those materials would be disproportionate to the needs of the case because the burden and expense of the proposed discovery outweigh its likely benefit for the following reasons: ______. For an Interrogatory, stating both an objection and an answer waives the objection. See, e.g., Tardif v. People for the Ethical Treatment of Animals, No. 2:09- Page 9 of 16 CV-537-FTM-29, 2011 WL 1627165, at *4 (M.D. Fla. Apr. 29, 2011) (“[W]henever an answer accompanies an objection, the objection is deemed waived, and the answer, if responsive, stands.”); but see Proflex Prods., Inc. v. Protecto Wrap Co., No. 12-21280- CIV, 2013 WL 12064531, at *1 (S.D. Fla. July 18, 2013) (J. Hunt) (holding that where discovery request can be subdivided without ambiguity, a party may object to a portion of the interrogatory specifically while also providing an answer to the non- objectionable portion.). E. Objections “To The Extent That” Parties often object to a discovery request “to the extent that” it seeks irrelevant or privileged evidence. This objection does not address whether, in fact, the request calls for non-discoverable evidence. If a party believes a discovery request seeks irrelevant or privileged evidence, the party must say so. F. Privilege Objections — Requests for Production and Interrogatories Generalized objections asserting attorney-client privilege or work product doctrine do not comply with the Local Rules. Local Rule 26.1(e)(2)(B) requires that objections based upon privilege identify the specific nature of the privilege being asserted, as well as, inter alia, the nature and subject matter of the communication at issue and the identities of the parties to the communication. S.D. Fla. L.R. 26.1(e)(2)(B). Local Rule 26.1(e)(2)(C) requires a privilege log. S.D. Fla. L.R. 26.1(e)(2)(C). If a general objection of privilege is made without attaching a proper privilege log, the objection of privilege may be deemed waived. The production of non- privileged materials should not be delayed while a party is preparing a privilege log. Page 10 of 16 G. Objections Based upon Privilege – Depositions In general, it is improper for a party to object to a noticed deposition with a blanket assertion of privilege. See S.E.C. v. Merkin, 283 F.R.D. 689, 698 (S.D. Fla. 2012) (J. Goodman), objections overruled, 283 F.R.D. 699 (S.D. Fla. 2012) (J. Graham). Rather, assertions of privilege during a deposition should be raised on a question-by- question basis, thus providing the Court with a record from which it can determine whether each assertion of privilege was proper. H. Objections to Rule 30(b)(6) Deposition Topics The Court typically will decline to rule on objections made in advance of a Rule 30(b)(6) deposition of a corporate representative. “In situations where a particular [Rule 30(b)(6)] noticed topic is alleged to be outside the scope of Rule 26 discovery . . . the remedy . . . does not involve this Court preemptively reviewing arguments on relevance or overbreadth.” Balu v. Costa Crociere S.P.A., No. 11-60031-CIV, 2011 WL 3359681, at *3 (S.D. Fla. Aug. 3, 2011) (J. Torres) (emphasis in original) (quoting New World Network Ltd. v. M/V Norwegian Sea, 2007 WL 1068124, at *2–3 (S.D. Fla. Apr. 6, 2007 (noting that “‘the Rule is intended to be self-executing and must operate extrajudicially’”). Often, the precise phrasing or context of a question will affect whether it is legally proper. To “give the Court a factual record with which to judge whether a particular topic or question asked should be compelled or not,” the corporate deponent should object to a topic as the questions are being posed, and the opposing party should move to compel additional answers, if necessary, after the deposition. Balu, 2011 WL 3359681, at *4. In sum, the corporate deponent’s lawyer is authorized to object to a deposition question and instruct the Page 11 of 16 witness not to answer on relevance grounds, but if the Court overrules the objection, the Court will assess fees and costs for reconvening the 30(b)(6) deposition. IV. PROCEDURES FOR DISCOVERY DISPUTES A. Pre-Hearing Communication If a discovery dispute arises, counsel must actually speak to one another (in person or via telephone) and engage in reasonable compromise in a genuine effort to resolve their discovery disputes before seeking Court intervention. B. Hearing Procedures If, after conferring, the parties are unable to resolve their discovery disputes without Court intervention, Magistrate Judge Reinhart will set the matter for a hearing using the following procedures. No discovery motions shall be filed until after the parties have engaged in this process. If the dispute is not resolved at the discovery hearing, the Court will consider authorizing the filing of an appropriate discovery motion, which will then implicate the sanctions provisions of Federal Rule of Civil Procedure 37(a)(5). The moving party may request a discovery hearing by sending an email to [email protected]. The subject line of the email shall be “Request for Discovery Hearing.” The email shall provide the Court with two afternoons in the following seven business days when all parties are available. The email shall state the amount of time that the parties anticipate needing for the hearing. The email shall be copied to all counsel, and shall certify that the moving party has conferred with opposing counsel and confirmed opposing counsel’s availability on the proposed Page 12 of 16 dates. The Court will enter an order setting the hearing. Counsel are required to appear in person at the discovery hearing unless otherwise excused by the Court. At least 48 hours prior to the scheduled hearing, the parties shall file a joint discovery memorandum of five pages or less (1) specifying the substance of the discovery matter to be heard, (2) certifying that the parties have complied with the pre-hearing communication requirement set forth above, and (3) attaching a copy of all source materials relevant to the discovery dispute (e.g., if the dispute concerns interrogatories, the interrogatories at issue and any responses thereto shall be provided to Chambers). A sample format for the joint discovery memorandum is attached as Appendix 1 to this Order. This procedure does not apply when non-parties object to subpoenas served upon them. C. Encouraging Participation by Less-Experienced Lawyers Ordinarily, only one lawyer for each party may argue at the discovery hearing. Nevertheless, the Court has a strong commitment to supporting the development of our next generation of lawyers. The Court encourages parties and senior attorneys to allow less-experienced practitioners the opportunity to argue in court. A party should advise the Court prior to the beginning of the hearing if a lawyer of 5 or fewer years of experience will be arguing the matter. In that event, the Court will allow multiple lawyers to argue on behalf of that party. Page 13 of 16 DONE and ORDERED in Chambers at West Palm Beach, Florida, on January 5, 2024. BRUCE E. REINHART UNITED STATES MAGISTRATE JUDGE Page 14 of 16 APPENDIX 1 The parties certify they have complied with the requirements for pre-hearing consultation contained in the Court’s Standing Discovery Order. Despite good faith efforts to resolve their differences, the following issues require resolution by the Court 1. The parties dispute the appropriate time frame for Plaintiff’s Interrogatory Nos. 1, 5, 6-9. Plaintiff asserts that the time frame should be limited to ____ because [legal basis for position, such as relevance, undue burden, disproportionate]. Defendant believes the proper time frame is _____. 2. Defendant objects to Request for Production 3. Defendant has produced ____ in response to the Request, believes that additional documents exist, but objects to the production of those documents because _____. Plaintiff believes that all the materials sought by the Requests are [relevant/proportional/not unduly burdensome] because ______. 3. Plaintiff objects to Request for Production 9, which calls for production of voluminous documents/electronic communications. Plaintiff asserts that it will be unduly burdensome and costly to conduct searches to identify if responsive documents exist. Defendant asserts that, to minimize cost and burden, it has proposed to limit the time frame of the request and has offered search terms as follows:_____. 4. Plaintiff objects to Interrogatory 7 because it would require disclosure of communications and materials protected by the attorney-client/work product privilege. Defendant asserts that no privilege exists because ____. Page 15 of 16 Copies of the relevant discovery requests and related pleadings are attached, as follows: 1. Plaintiff’s First Interrogatories and Defendant’s Response and Objections 2. Defendant’s Request for Production and Plaintiff’s Objections Page 16 of 16

=== 2015 Year-End Report on the Federal Judiciary ===

EMBARGOED until 6 p.m. E.S.T. December 31, 2015 (No wires, TV, radio, Internet, or other formats before 6 p.m. E.S.T.) For further information, contact the Public Information Office 202-479-3211 2015 Year-End Report on the Federal Judiciary In 1838, John Lyde Wilson, a former governor of South Carolina, made a grim contribution to the literature of dispute resolution by publishing “The Code of Honor; or Rules for the Government of Principals and Seconds in Duelling.” That 22-page booklet, sized to fit comfortably alongside a gentleman’s matched pair of dueling pistols, specified the procedure for issuing a challenge, the duties of seconds, and the proper conduct of the duel itself. More detailed than its predecessors, the Irish and French dueling codes, Wilson’s rulebook set out time limits, the form and methods of written communications, the obligation to attempt reconciliation without bloodshed, and—if attempts at mediation failed—how to pace off the field of battle. Wilson professed that he was not advocating that adversaries settle their disputes through duels, but he claimed that dueling was inevitable “where there is no tribunal to do justice to an oppressed and deeply wronged individual.” He suggested that laying out practices and procedures to ensure that duels would be conducted fairly—including provisions for resolving disputes through apology and compromise—would in fact save lives. It may be that Wilson’s code had exactly the opposite effect, glorifying and institutionalizing a barbarous practice that led to wanton death. Our Nation had lost Alexander Hamilton to a senseless duel in 1804. Abraham Lincoln and Mark Twain could have perished in duels if their seconds, in each instance, had not negotiated an amicable solution. But others were not so fortunate; one historian has calculated that, between 1798 and the Civil War, the United States Navy lost two-thirds as many officers to dueling as it did to more than 60 years of combat at sea. Public opinion ultimately turned against dueling as a means of settling quarrels. By 1859, eighteen of the 33 States of the Union had outlawed duels. Following the Civil War, a public weary of bloodshed turned increasingly to other forums, including the courts, to settle disputes. But reminders of the practice persist. When Kentucky lawyers are admitted to the bar, they are required, by law, to swear that they have not participated in a duel. Today, Wilson’s pamphlet stands on the bookshelf as a largely forgotten relic of a happily bygone past. But it is also a stark reminder of government’s responsibility to provide tribunals for the peaceful resolution 2 of all manner of disputes. Our Nation’s courts are today’s guarantors of justice. Those civil tribunals, far more than the inherently uncivilized dueling fields they supplanted, must be governed by sound rules of practice and procedure. The Rules Enabling Act, 28 U.S.C. §§ 2071 et seq., empowers the federal courts to prescribe rules for the conduct of their business. The Judicial Conference—the policy making body of the federal judiciary—has overall responsibility for formulating those rules. Consistent with that charge, Congress has directed the Conference to “carry on a continuous study of the operation and effect of the general rules of practice and procedure.” 28 U.S.C. § 331. The primary work is done through the Conference’s Committee on Rules of Practice and Procedure (known as the Standing Committee), which in turn enlists guidance from advisory committees that focus on the specialties of appellate, bankruptcy, civil, and criminal procedure, and the rules of evidence. Those committees solicit recommendations, conduct public hearings, draft proposed rules, and propose amendments for the Judicial Conference’s consideration. If the Judicial Conference concurs, the proposed rules and amendments, together with a report on their promulgation, are submitted to the Supreme Court for its approval. If the Court approves, the rules are then laid before Congress, 3 by the annual deadline of May 1, for its examination. Unless Congress intervenes by December 1, the new rules take effect. This process of judicial rule formulation, now more than 80 years old, is elaborate and time-consuming, but it ensures that federal court rules of practice and procedure are developed through meticulous consideration, with input from all facets of the legal community, including judges, lawyers, law professors, and the public at large. Many rules amendments are modest and technical, even persnickety, but the 2015 amendments to the Federal Rules of Civil Procedure are different. Those amendments are the product of five years of intense study, debate, and drafting to address the most serious impediments to just, speedy, and efficient resolution of civil disputes. The project goes back to 2010, when the Advisory Committee on Civil Rules sponsored a symposium on civil litigation, which brought together federal and state judges, law professors, and plaintiff and defense lawyers, drawn from business, government, and public interest organizations. The symposium, which generated 40 papers and 25 data compilations, confirmed that, while the federal courts are fundamentally sound, in many cases civil litigation has become too expensive, time- consuming, and contentious, inhibiting effective access to the courts. The symposium specifically identified the need for procedural reforms that 4 would: (1) encourage greater cooperation among counsel; (2) focus discovery—the process of obtaining information within the control of the opposing party—on what is truly necessary to resolve the case; (3) engage judges in early and active case management; and (4) address serious new problems associated with vast amounts of electronically stored information. The Advisory Committee on Civil Rules set to work on those problems. Over the next three years, the Committee drafted proposed amendments and published them for public comment. It received more than 2,300 written comments and held public hearings in Dallas, Phoenix, and Washington, D.C., eliciting input from more than 120 witnesses. The Committee then revised the amendments in response to the public recommendations. The proposed amendments received further scrutiny from the Standing Committee, the Judicial Conference, and the Supreme Court, before submission to Congress. The amended rules, which can be viewed at http://www.uscourts.gov/federal-rules-civil-procedure, went into effect one month ago, on December 1, 2015. They mark significant change, for both lawyers and judges, in the future conduct of civil trials. The amendments may not look like a big deal at first glance, but they are. That is one reason I have chosen to highlight them in this report. For example, Rule 1 of the Federal Rules of Civil Procedure has been expanded 5 by a mere eight words, but those are words that judges and practitioners must take to heart. Rule 1 directs that the Federal Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” The underscored words make express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation—an obligation given effect in the amendments that follow. The new passage highlights the point that lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes. Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 6 The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need. That assessment may, as a practical matter, require the active involvement of a neutral arbiter—the federal judge—to guide decisions respecting the scope of discovery. The amended rules accordingly emphasize the crucial role of federal judges in engaging in early and effective case management. The prior rules—specifically Rule 16—already required that the judge meet with the lawyers after the complaint is filed, confer about the needs of the case, and develop a case management plan. The amended rules have shortened the deadline for that meeting and express a preference for a face-to-face encounter to enhance communication between the judge and lawyers. The amendments also identify techniques to expedite resolution of pretrial discovery disputes, including conferences with the judge before filing formal motions in aid of discovery. Such conferences can often obviate the need for a formal motion—a well-timed scowl from a trial judge can go a long way in moving things along crisply. 7 Recognizing the evolving role of information technology in virtually every detail of life, the amended rules specifically address the issue of “electronically stored information,” which has given birth to a new acronym—“ESI.” Rules 16 and 26(f) now require the parties to reach agreement on the preservation and discovery of ESI in their case management plan and discovery conferences. Amendments to Rule 37(e) effect a further refinement by specifying the consequences if a party fails to observe the generally recognized obligation to preserve ESI in the face of foreseeable litigation. If the failure to take reasonable precautions results in a loss of discoverable ESI, the courts must first focus on whether the information can be restored or replaced through alternative discovery efforts. If not, the courts may order additional measures “no greater than necessary” to cure the resulting prejudice. And if the loss of ESI is the result of one party’s intent to deprive the other of the information’s use in litigation, the court may impose prescribed sanctions, ranging from an adverse jury instruction to dismissal of the action or entry of a default judgment. The rules amendments eliminate Rule 84, which referenced an appendix containing a number of civil litigation forms that were originally designed to provide lawyers and unrepresented litigants with examples of proper pleading. Over the years since their publication, many of those forms 8 have become antiquated or obsolete. The Administrative Office of the United States Courts assembled a group of experienced judges to replace those outdated forms with modern versions that reflect current practice and procedure. They have largely completed their work. The Administrative Office has already posted 12 revised forms on the federal judiciary’s website, with three more to follow in the next month. See http://www.uscourts.gov/forms/pro-se-forms. The 2015 civil rules amendments are a major stride toward a better federal court system. But they will achieve the goal of Rule 1—“the just, speedy, and inexpensive determination of every action and proceeding”— only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change. I think we are off to a good start. The Federal Judicial Center, which is the educational and research arm of the federal judiciary, has created a training program for federal judges to ensure they are prepared to introduce the procedural reforms in their courtrooms. Training is necessary for lawyers too, and the American Bar Association and many local bar organizations have initiated educational programs and workshops across the country. The practical implementation of the rules may require some adaptation and innovation. I encourage all to support the judiciary’s plans to 9 test the workability of new case management and discovery practices through carefully conceived pilot programs. In addition, a wide variety of judicial, legal, and academic organizations have supplied key insights in the improvement of both federal and state rules of practice, and they are continuing to provide their perspectives and expertise on the rollout of the new rules. I am confident that the Advisory Committee on Civil Rules will continue to engage the full spectrum of those organizations in its ongoing work. The success of the 2015 civil rules amendments will require more than organized educational efforts. It will also require a genuine commitment, by judges and lawyers alike, to ensure that our legal culture reflects the values we all ultimately share. Judges must be willing to take on a stewardship role, managing their cases from the outset rather than allowing parties alone to dictate the scope of discovery and the pace of litigation. Faced with crushing dockets, judges can be tempted to postpone engagement in pretrial activities. Experience has shown, however, that judges who are knowledgeable, actively engaged, and accessible early in the process are far more effective in resolving cases fairly and efficiently, because they can identify the critical issues, determine 10 the appropriate breadth of discovery, and curtail dilatory tactics, gamesmanship, and procedural posturing. As for the lawyers, most will readily agree—in the abstract—that they have an obligation to their clients, and to the justice system, to avoid antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship. I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics. The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results. I am hardly the first to urge that we must engineer a change in our legal culture that places a premium on the public’s interest in speedy, fair, and efficient justice. But I am motivated to address the subject now because the 2015 civil rules amendments provide a concrete opportunity for actually getting something done. In the nineteenth century, a change in culture left dueling by the wayside and left us with lessons learned. Joseph Conrad’s novella “The Duel” tells the tale, taken from fact, of two gallant French cavalry 11 officers, D’Hubert and Feraud. Estranged by a trifling slight, they repeatedly duel over a 15-year period. According to newspapers of the era, the real-life antagonists, Dupont and Fournier, would cross swords and draw blood whenever their military service brought them near to one another. Conrad’s characters, like the real ones, relentlessly persist in their personal feud through the rise, fall, reemergence, and ultimate exile of Napoleon, as the world transforms around them. In the end, these soldiers, who should have been comrades in a patriotic cause, spent much of their adult lives focused on a petty squabble that left them with nothing but scars. We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result. Another year has quickly passed, and once again, I am privileged and honored to be in a position to thank all of the judges, court staff, and judicial personnel throughout the Nation for their continued excellence and dedication. Best wishes to all in the New Year. 12 Appendix Workload of the Courts In the 12-month period ending September 30, 2015, caseloads decreased in the Supreme Court, the regional appellate courts, the district courts, the bankruptcy courts, and the pretrial services system. Growth occurred, however, in the number of persons under post-conviction supervision. The Supreme Court of the United States The total number of cases filed in the Supreme Court decreased by 4.65 percent from 7,376 filings in the 2013 Term to 7,033 filings in the 2014 Term. The number of cases filed in the Court’s in forma pauperis docket decreased by 5.50 percent from 5,808 filings in the 2013 Term to 5,488 filings in the 2014 Term. The number of cases filed in the Court’s paid docket decreased by 1.47 percent from 1,568 filings in the 2013 Term to 1,545 filings in the 2014 Term. During the 2014 Term, 75 cases were argued and 75 were disposed of in 66 signed opinions, compared with 79 cases argued and 77 disposed of in 67 signed opinions during the 2013 Term. The Court also issued eight per curiam decisions during the 2014 Term in cases that were not argued. 13 The Federal Courts of Appeals In the regional courts of appeals, filings dropped four percent to 52,698. Appeals involving pro se litigants, which amounted to 51 percent of filings, fell four percent. Total civil appeals decreased seven percent. Criminal appeals rose three percent, as did appeals of administrative agency decisions, and bankruptcy appeals grew seven percent. The Federal District Courts Civil case filings in the U.S. district courts declined six percent to 279,036. Cases involving diversity of citizenship (i.e., disputes between citizens of different states) fell 14 percent, largely because of a reduction in personal injury/product liability filings. Cases with the United States as defendant dropped seven percent in response to fewer filings of prisoner petitions and Social Security cases. Cases with the United States as plaintiff went down 10 percent as filings of forfeiture and penalty cases and contract cases decreased. Filings for criminal defendants (including those transferred from other districts) held relatively steady, declining one percent to 80,069. Defendants accused of immigration violations dropped five percent, with the southwestern border districts receiving 79 percent of national immigration defendant filings. Defendants charged with property offenses (including 14 fraud) fell six percent. Other reductions were reported for filings involving traffic offenses, general offenses, regulatory offenses, and justice system offenses. Drug crime defendants, who accounted for 32 percent of total filings, rose two percent. Increases also occurred in filings related to firearms and explosives, sex offenses, and violent crimes. The Bankruptcy Courts Bankruptcy petition filings decreased 11 percent to 860,182. Fewer petitions were filed in all bankruptcy courts but one—the Middle District of Alabama had three percent more filings this year. Consumer (i.e., nonbusiness) petitions dropped 11 percent, and business petitions fell 12 percent. Filings of petitions declined 14 percent under Chapter 7, eight percent under Chapter 11, and three percent under Chapter 13. This year’s total for bankruptcy petitions is the lowest since 2007, the first full year after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 took effect. From 2007 to 2010, bankruptcy filings rose steadily, but they have fallen in each of the last five years. The Federal Probation and Pretrial Services System A total of 135,468 persons were under post-conviction supervision on September 30, 2015, an increase of two percent over the total one year earlier. Of that number, 114,961 persons were serving terms of supervised 15 release after leaving correctional institutions, a three percent increase from the prior year. Cases activated in the pretrial services system, including pretrial diversion cases, fell five percent to 95,013. 16

=== Order Setting Discovery Status ===

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No: -CIV-ROSENBERG/REINHART , v. , Plaintiff, _____________________________________/ Defendants. ORDER SETTING DISCOVERY STATUS CONFERENCE THIS CAUSE comes before this Court upon an Order of Reference from the District Court. It is hereby ORDERED AND ADJUDGED as follows: Counsel shall appear before this Court on [DATE] at [TIME] at the United States Courthouse, 701 Clematis Street, West Palm Beach, Florida, 33401, for a final discovery status conference before Magistrate Judge Bruce Reinhart. ONE WEEK IN ADVANCE of this conference, counsel shall file a joint discovery status report which addresses the following: a.) what discovery has been propounded by each party; b.) whether the discovery requests have been answered; c.) the status of depositions, including: 1. the number of depositions already taken; 2. the number of remaining depositions and whether they have been scheduled; and 3. an explanation of any delay in scheduling the remaining depositions; d.) the status of expert disclosures; e.) whether there are any outstanding discovery disputes; f.) whether the parties believe that a discovery status conference is needed; and g.) whether the parties can certify that all discovery will be completed by the discovery deadline. DONE and ORDERED in Chambers on , 2019, at West Palm Beach in the Southern District of Florida. BRUCE REINHART UNITED STATES MAGISTRATE JUDGE 2

=== Florida Law Review article on e-discovery by U.S. Magistrate Judge William Matthewman ===

TOWARDS A NEW PARADIGM FOR E-DISCOVERY IN CIVIL LITIGATION: A JUDICIAL PERSPECTIVE William Matthewman* Abstract The Federal Rules of Civil Procedure provide the basic framework for production of discovery that is relevant and proportional to litigants’ claims and defenses. In the past, litigants and attorneys far too often used these rules to obstruct the discovery process rather than to facilitate it. This Old Discovery Paradigm used overbroad discovery requests, boilerplate discovery responses, dilatory behavior, and a lack of cooperation among opposing counsel. However, with the emergence of ever-expanding technologies using email, texts, and other forms of electronic communication, the modern legal system requires a New E- Discovery Paradigm to govern how litigants, their counsel, and judges utilize the federal discovery rules when dealing with the vast amount of electronically stored information involved in most civil cases. A New E- Discovery Paradigm must emerge if our modern legal system is to leap into the twenty-first century and effectively and economically deal with ESI. This New E-Discovery Paradigm contains at least ten crucial core components that illuminate and ultimately execute the language and intent of the drafters of the most recent amendments to the Federal Rules of Civil Procedure. INTRODUCTION ................................................................................... 1262 I. THE OLD DISCOVERY PARADIGM ......................................... 1263 II. THE NEW E-DISCOVERY PARADIGM .................................... 1265 III. THE CORE COMPONENTS OF THE NEW E-DISCOVERY PARADIGM ............................................................................ 1266 A. Core Component 1: Proper and Timely Preservation of Potential Discovery ............................ 1266 B. Core Component 2: Prompt and Complete Rule 26(a)(1) Initial Disclosures .................................. 1268 C. Core Component 3: Targeted and Precise Discovery Requests ...................................................... 1269 * J.D., 1983, University of Florida College of Law. Judge Matthewman is a United States Magistrate Judge for the United States District court for the Southern District of Florida who sits in the West Palm Beach Division. Graduating law school with honors, Judge Matthewman served as a Research Editor on the Florida Law Review. Prior to his appointment to the bench, Judge Matthewman was a very active trial lawyer and was Board Certified by the Florida Bar as a criminal trial attorney. 1261 1262 FLORIDA LAW REVIEW [Vol. 71 D. Core Component 4: Complete Discovery Responses Devoid of Boilerplate and Meritless Obligations ................................................... 1270 E. Core Component 5: Professionalism, Cooperation, Honest Good Faith, and Personal Conferral Among the Parties’ Counsel When the Inevitable Discovery Dispute Arises ............................................. 1271 F. Core Component 6: Limitation of Discovery by the Court to Discovery That Is Relevant and Proportional to Pending Claims or Defenses, as Required by Rule 26(b)(1), and the Elimination of Wasteful or Unnecessary Discovery ................................................ 1273 G. Core Component 7: Early and Routine Involvement of the Parties’ In-House Information Technology (IT) Professionals During the Discovery Process ...................................... 1274 H. Core Component 8: Use of E-Discovery Companies, Vendors, and Experts to Assist as Needed in Litigation ................................................ 1275 I. Core Component 9: Greater Reliance on Technology Assisted Review (TAR), Search Terms, Sampling, Artificial Intelligence, and Other Scientific or Technical Methods to Facilitate the Discovery Process in a Transparent and Reliable Manner ............................... 1276 J. Core Component 10: Active Participation of Judges in the Discovery Process and Prompt Resolution of Any Discovery Disputes by the Court .... 1279 CONCLUSION ....................................................................................... 1279 INTRODUCTION Jurists, attorneys, and litigants are routinely confounded, frustrated, and hampered by unnecessary electronic discovery (e-discovery) disputes in civil litigation.1 Since virtually all discovery is now e-discovery, these (Feb. 1. See, e.g., Sam Skolnik, Judges Frustrated by Lawyers’ Lack of E-Discovery Expertise, BNA https://www.bna.com/judges-frustrated-lawyers-n57982096160/ [https://perma.cc/8ZZM-GD2F] (noting that many judges “remain frustrated by the lack of e- discovery expertise of many lawyers who appear before them”). 2019), 12, 2019] TOWARDS A NEW PARADIGM 1263 disputes infect every aspect of litigation.2 They often become the proverbial “tail wagging the dog,” that is, the discovery process often drives many months or years of contentious and oftentimes unnecessary litigation, which delays the ultimate resolution of the case on the merits— whether by trial, summary judgment, settlement, or otherwise. This Article is written from the perspective of a jurist. In general, judges want the discovery process to be fair to all parties, efficient, and cost-effective. The discovery process must be an aid, not a hindrance, to the just, speedy, and inexpensive resolution of every civil action, as required by Federal Rule of Civil Procedure 1.3 Judges want the parties to obtain the discovery they need to attempt to prove their claims or defenses while avoiding wasteful or unnecessary discovery. This Article first briefly discusses the old paradigm of discovery, which is likely quite well-known to many seasoned litigators and jurists. This Article discusses the old discovery paradigm for only two reasons. First, this Article discusses this old paradigm to dismiss it and hopefully help in relegating it to the depths of “Discovery Hell.” Second, this Article contrasts the old discovery paradigm with the new e-discovery paradigm, which will enhance, accelerate, and improve the e-discovery process in civil actions. This Article will next discuss the emerging, new paradigm for e- discovery in litigation, including its ten most crucial core components. This new paradigm is a practical approach from a judge who has observed and presided over numerous discovery disputes and battles. It incorporates many concepts that other groups and organizations, including the Sedona Conference, have been advocating for several years. This Article does not suggest that this proposed e-discovery paradigm is the end of the road; rather, it is a paradigm that others will hopefully consider and improve upon as courts progress in dealing with the thorny issue of e-discovery in the twenty-first century. I. THE OLD DISCOVERY PARADIGM The traditional paradigm of discovery is a contentious, pugilistic, take-no-prisoners approach where litigants demand extensive, far- reaching, mind-numbing, and overwhelming discovery with no real 2. See William Gleisner, The Rise of E-Discovery, THOMSON REUTERS: LEGAL SOLUTIONS BLOG (June 2, 2014), https://blog.legalsolutions.thomsonreuters.com/practice-of-law/rise-e- discovery/ [https://perma.cc/6PQR-MTTB] (“[I]n the past ten years[,] courts and practitioners have made major strides in the area of e-discovery.”). 3. See FED. R. CIV. P. 1 (“[These rules] should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”). 1264 FLORIDA LAW REVIEW [Vol. 71 concern for cost, proportionality, or burdensomeness.4 In fact, one of the goals of propounding discovery in the traditional paradigm is to wear the other side down with a large volume of nearly repetitive discovery requests in an effort to make life as difficult as possible for the opponent.5 As a driving force behind this part of the old paradigm, litigants ask for virtually everything under the sun (including the proverbial kitchen sink) in an effort to make the battle exceedingly costly for their opponents with the hope that perhaps they will fold their tent and go away.6 Also, with legal malpractice a prevalent thought in the litigator’s mind, surely the client could never say his attorney forgot to ask for something if the attorney had asked for everything theoretically possible—in numerous, repetitive, overbroad requests!7 The responding litigant is often equally diabolical, raising page after page of boilerplate, redundant, picayune, and obscure objections with the goal of frustrating the opponent and producing as little discovery as possible.8 Under this old paradigm, respondents pride themselves on making as many objections as humanly possible, admitting or saying nothing or next to nothing, and making their opponent’s discovery process exceedingly costly and akin to pulling sharks’ teeth in the dark.9 As a driving force behind this part of the old paradigm, litigators try to look tough to their opponents (and clients) to make the opposing party and counsel realize they are in for a costly and lengthy legal battle.10 At the top of this old paradigm is the tired and weary judge who must review numerous, contentious discovery motions, responses, and replies; 4. See, e.g., Michael R. Nelson & Mark H. Rosenberg, A Duty Everlasting: The Perils of Applying Traditional Doctrines of Spoliation to Electronic Discovery, 12 RICH. J.L. & TECH., no. 4, 2006, at 1, https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1253&context=jolt [https://perma.cc/46JQ-MJVC] (explaining that traditional discovery principles created “burden, expense and uncertainty”). 5. See John C. Koski, From Hide-and-Seek to Show-and-Tell: Evidentiary Disclosure Rules, 17 AM. J. TRIAL ADVOC. 497, 497 (1993) (“Discovery may be abused purposefully by the unscrupulous lawyer who seeks to wear down an opponent by repetitive and costly discovery practices.”). 6. See id.; see also Note, Discovery Abuse Under the Federal Rules: Causes and Cures, 92 YALE L.J. 352, 357 (1982) (“[D]iscovery benefits a litigant by allowing him to threaten to impose costs—in the form of burdensome requests—upon his opponent.”). 7. See Koski, supra note 5 (“Fearing . . . the risk of malpractice liability . . . lawyers leave no stone unturned.” (quoting William W. Schwarzer, Slaying the Monsters of Cost and Delay: Would Disclosure Be More Effective than Discovery?, 74 JUDICATURE 178, 178–79 (1991 . 8. See, e.g., Matthew L. Jarvey, Note, Boilerplate Discovery Objections: How They Are Used, Why They Are Wrong, and What We Can Do About Them, 61 DRAKE L. REV. 913, 928 (2013). 9. See, e.g., id. (listing some of these diabolical boilerplate objections and noting that this “add[s] to an already expensive process of discovery”). 10. See, e.g., id. at 927 (“The practice of using boilerplates objections imposes monetary costs on clients and the litigation process. The major cost is time.” (footnote omitted . 2019] TOWARDS A NEW PARADIGM 1265 sit through endless discovery hearings; review numerous overbroad discovery requests and boilerplate objections; babysit the warring attorneys; and ultimately decide what should be produced and what should not be produced. Acting as a referee in these discovery slugfests is a waste of judicial resources. Due to time constraints and the press of many other cases, judges may make decisions with little information about what the case is really about and without much help from counsel who bitterly battle, routinely seek sanctions against their opponent, and make no real attempt at cooperation. This procedure leads to inevitable and lengthy delays in the ultimate resolution of the case, causes exorbitant financial costs to the litigants, and often causes the discovery process to consume the bulk of the litigation.11 The old discovery paradigm is unsustainable in the twenty-first century where extensive electronic data accumulates and expands at a staggering rate and where e-discovery predominates. Judges—supported by the amended Federal Rules of Civil Procedure (which took effect on December 1, 2015),12 the Sedona Conference principles,13 and the United States Supreme Court Chief Justice’s 2015 Year End Report14—can no longer tolerate such discovery shenanigans. It is well past time for the legal field to move on to a new discovery paradigm. II. THE NEW E-DISCOVERY PARADIGM The new e-discovery paradigm contains, at least, the following ten core components: 1) proper and timely preservation of potential discovery; 2) prompt and complete Rule 26(a)(1) initial disclosures; 3) targeted and precise discovery requests; 11. See Charles B. Renfrew, Discovery Sanctions: A Judicial Perspective, 2 REV. LITIG. 71, 72 (1981) (“Unjustified demands for and refusals to provide discovery prolong litigation and increase its costs.”). 12. See, e.g., FED. R. CIV. P. 1 advisory committee’s note to 2015 amendment (explaining that the 2015 amendments to the Rules emphasize that courts and parties have a joint responsibility to administer the Rules in a way that ensures a “just, speedy, and inexpensive determination of every action” while considering the proportionality of discovery in resolving disputes). 13. See generally, e.g., THE SEDONA CONFERENCE, THE SEDONA PRINCIPLES: BEST PRACTICES RECOMMENDATIONS & PRINCIPLES FOR ADDRESSING ELECTRONIC DOCUMENT PRODUCTION (2d ed. 2007) (discussing the impact of e-discovery and electronically stored information (ESI) on modern discovery). 14. JOHN G. ROBERTS, 2015 YEAR-END REPORT ON THE FEDERAL JUDICIARY 4–8 (2015), www.supremecourt.gov/publicinfo/year-end/2015year-endreport.pdf [https://perma.cc/56SA-975M] (discussing issues relating to ESI). 1266 FLORIDA LAW REVIEW [Vol. 71 4) complete discovery responses devoid of boilerplate and meritless objections; 5) professionalism, cooperation, and honest good faith, personal conferral among the parties’ counsel when the inevitable discovery dispute arises; 6) limitation of discovery by the court to discovery that is relevant and proportional to pending claims or defenses, as required by Rule 26(b)(1),15 and elimination of wasteful or unnecessary discovery; 7) early and routine involvement of the parties’ in-house information technology (IT) professionals during the discovery process; 8) use of e-discovery companies, vendors, and experts to assist as needed in litigation; 9) greater reliance on technology assisted review (TAR), search terms, sampling, artificial intelligence, and other scientific or technical methods to aid, hasten, and economize the discovery process in a transparent and reliable manner; and 10) active participation of judges in the discovery process and prompt resolution of any discovery disputes by the court. Though this list of core components may seem lengthy to a reader, this Article will now break them down piece-by-piece into a digestible paradigm. III. THE CORE COMPONENTS OF THE NEW E-DISCOVERY PARADIGM A. Core Component 1: Proper and Timely Preservation of Potential Discovery In the U.S. Court of Appeals for the Eleventh Circuit, for example, a duty to preserve arises when litigation is pending or is reasonably foreseeable.16 Other circuits may have slightly different standards, but all 15. See FED. R. CIV. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case . . . .”). 16. See, e.g., Graff v. Baja Marine Corp., 310 F. App’x 298, 301 (11th Cir. 2009); Living Color Enters., Inc. v. New Era Aquaculture, Ltd., No. 14-cv-62216, 2016 WL 1105297, at *3 (S.D. Fla. Mar. 22, 2016). 2019] TOWARDS A NEW PARADIGM 1267 circuits have a duty to preserve at some point.17 So, what is a company, person, or attorney to do when civil litigation is pending or reasonably foreseeable? The simple answer—preserve. Proper, timely, and complete preservation of potential discovery avoids spoliation claims and possible sanctions under Federal Rule of Civil Procedure 37(e).18 Spoliation motions are virtually always time- consuming for the court to resolve, and they often require lengthy evidentiary hearings.19 If litigants properly preserve discoverable information at the outset, they can avoid spoliation issues during litigation. Companies of all sizes need to have a vigorous, effective, and justifiable preservation policy in place. A valid and effective document retention policy needs to be in place and must be periodically reviewed and updated. Further, that company policy needs to be transparent, followed, and enforced. A company’s Information and Technology (IT) professionals are crucial in the preservation process.20 The company’s IT professionals know, for example, the automatic deletion policy or process, and they know how to stop it for preservation purposes. For this reason, they are essential. Attorneys representing individuals or entities who find themselves involved in litigation, or for whom litigation is reasonably foreseeable, need to instruct their clients about the clients’ preservation obligations relating to text messages, emails, social media, and other electronically stored information (ESI), and to ensure preservation from the outset. Whether this means that attorneys should, at the outset of their representation, make a copy of the individual client’s cell phone, computer hard drive, or other electronic device or storage, or alternatively hire an ESI vendor to work with a company’s IT staff to preserve data or take some other reasonable action, the attorney should ensure that this is done. It is important to understand that preservation is a two-way street. In the pre-litigation phase where litigation is reasonably foreseeable, it applies equally to both potential defendants and plaintiffs.21 Although 17. See, e.g., FED. R. CIV. P. 37(e) (requiring federal litigants to preserve ESI). 18. See id. 19. See, e.g., Charles W. Adams, Spoliation of Electronic Evidence: Sanctions Versus Advocacy, 18 MICH. TELECOMM. & TECH. L. REV. 1, 3 (2011). 20. See generally Philip Favro, Defensible Deletion: The Touchstone of Effective E- Discovery, 7 TECH. FOR LITIGATOR 13 (2013) (discussing overall strategies for retaining data, including IT professionals and their crucial role). 21. See, e.g., Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 498 (S.D.N.Y. 2010) (instructing the jury that “each . . . plaintiff[] failed to preserve evidence after its duty to preserve arose”), abrogated on other grounds by Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135 (2d Cir. 2012). 1268 FLORIDA LAW REVIEW [Vol. 71 preservation is often thought of in terms of its applicability to potential corporate defendants, including large companies, corporations, and insurers, it also applies equally to current and future plaintiffs, whether corporate or individual.22 So, for example, if an individual client comes to see an attorney about a potential Telephone Consumer Protection Act of 199123 claim—where the individual claims that texts were sent to his cell phone or calls were made without his consent—that client must preserve his cell phone data from the outset.24 And, the attorney has a duty to advise the client and ensure that proper preservation takes place.25 Timely, complete, and ethical preservation of ESI at the outset is required of all parties, whether corporate or individual.26 Preservation is the building block upon which the discovery process is based. To have an effective discovery process, there must first be an effective and valid preservation process. On a going-forward basis in the area of ESI preservation, there will be significant challenges due to the viral and creative nature of proliferating communication tools, collaboration devices, and social media platforms. That is, the challenge will be, how does one preserve data in a cost-effective manner when that data is so voluminous, varied, and constantly changing and morphing in this modern electronic age? Therefore, the first big challenge in the e-discovery context is preservation, which must reliably occur before the difficulties inherent in collecting and searching such myriad data and information can be discussed. As time relentlessly goes on, it is essential that litigants and attorneys rely more on ESI vendors and IT professionals in this important preservation process. B. Core Component 2: Prompt and Complete Rule 26(a)(1) Initial Disclosures Federal Rule of Civil Procedure 26(a)(1) requires parties to disclose not only the identities of individuals likely to have discoverable information, but also “a copy—or a description by category and 22. See, e.g., id. 23. Pub. L. No. 102-243, 105 Stat. 2394 (codified as amended at 47 U.S.C. § 227 (2012 . 24. See Living Color Enters. v. New Era Aquaculture, Ltd., No. 14-62216-CIV, 2016 WL 1105297 at *4 (S.D. Fla. 2016). 25. See generally, e.g., Spoliation: What’s the Lawyer’s Duty to Preserve Evidence?, STATE BAR WIS. (Nov. 19, 2014), https://www.wisbar.org/NewsPublications/InsideTrack/Pages/ Article.aspx?Volume=6&Issue=22&ArticleID=23700 [https://perma.cc/VEP4-CY75] (discussing the obligation to preserve evidence and the lawyer’s role in advising the client). 26. See generally Paul W. Grimm et al., Proportionality in the Post-Hoc Analysis of Pre- Litigation Preservation Decisions, 37 U. BALT. L. REV. 381 (2008) (discussing the duty to preserve evidence and noting that there is no uniform source for the duty to preserve, but that, nonetheless, “the duty [to preserve] is well-established”). 2019] TOWARDS A NEW PARADIGM 1269 location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.”27 Rule 26(a)(1) should not be overlooked or minimized; it is an important rule that, when parties fully comply in good faith, enhances and greatly assists the discovery process. When used properly, Rule 26(a)(1) lays the groundwork and provides an efficient pathway for future discovery. It is akin to a roadmap showing the parties and counsel how and where discovery needs to proceed. It allows parties and counsel to make informed decisions regarding the extent of discovery necessary and how document requests should be framed.28 Courts should require parties and their counsel to fully comply in good faith with the Rule’s requirements. Failure to fully comply should result in sanctions where appropriate. Full compliance will allow all parties to map out the most effective and economical discovery process, and it will allow the court to understand the discovery needs of a specific case.29 Rule 26(a)(1) should be used as an important and beneficial tool; that is, the roadmap, building block, and foundation to an effective and efficient e-discovery process during litigation. C. Core Component 3: Targeted and Precise Discovery Requests The days of overbroad, excessive, and “any and all” discovery requests are gone. Such requests do more harm than good, especially in the area of ESI, and courts will no longer tolerate or indulge them. Judges dislike and reject shotgun discovery requests just as they do shotgun complaints. Parties and their counsel have a duty and obligation to seek only relevant and proportional documents or information in the discovery process.30 Under Federal Rule of Civil Procedure 34(b)(1), parties are required to specifically “describe with reasonable particularity” the information that is being requested.31 Parties and their counsel must comply with this requirement voluntarily or judges will force them to do so. 27. FED. R. CIV. P. 26(a)(1)(A)(ii). 28. See RONALD J. HEDGES ET AL., MANAGING DISCOVERY OF ELECTRONIC INFORMATION 18–19 (3d ed. 2017). 29. See Renfrew, supra note 11, at 71 (“[T]he civil justice system in the United States [is] a system that depends upon the willingness of both litigants and lawyers to try in good faith to comply with the rules established for the fair and efficient administration of justice.”). 30. See FED. R. CIV. P. 26(b)(1). 31. Id. at 34(b)(1)(A). 1270 FLORIDA LAW REVIEW [Vol. 71 General discovery requests for anything and everything indicate that a party’s counsel is making no real attempt to seek only relevant and proportional documents or information. Discovery requests, including requests for production, must comply with the proportionality requirements of Rule 26(b).32 Discovery requests must be limited in time and scope, and must take into account the requisites of the case and the pending claims or defenses.33 Again, if the parties’ counsel will not make these efforts, the court will require them to do so. Discovery requests must consider the costs or burden to the responding party—and not endeavor to unnecessarily increase that burden or cost.34 Parties and their counsel who fail to properly target their discovery requests to the pending claims or defenses violate the discovery rules and risk incurring the ire of the presiding judge. D. Core Component 4: Complete Discovery Responses Devoid of Boilerplate and Meritless Objections Core Component 4 is the other side of the coin that this Article discusses regarding Core Component 3. Simply stated, boilerplate and meritless objections to discovery requests are no longer justified or permitted.35 Yet, incredibly, they continue to exist.36 Under Rule 34(b)(2), a party responding to discovery must state objections with specificity.37 For example, the timeworn phrases of “vague,” “overly broad,” and “unduly burdensome” are, without specifics, utterly meaningless and will be rejected out of hand.38 Improper discovery responses of this type can no longer exist in the twenty-first century world of ESI. Frequently, discovery responses will first list page after page of so- called “general objections” and then go on to incorporate those general objections into each numbered discovery response, along with additional objections apparently designed on some obtuse level to respond to the specific numbered discovery request in mind. This type of response is often followed by the meaningless statement that, “subject to the 32. See id. at 26(b). 33. See id. 34. See id. (“Parties may obtain discovery . . . proportional to the needs of the case, considering . . . whether the burden or expense of the proposed discovery outweighs its likely benefit.”). 35. See Jarvey, supra note 8, at 919 (“[B]oilerplate objections do not serve the goals of the Federal Rules of Civil Procedure . . . .”). 36. Id. at 925. 37. FED. R. CIV. P. 34(b)(2)(C). 38. E.g., Spencer v. City of Orlando, No. 6:15-cv-345-Orl-37TBS, 2016 WL 397935, at *2 (M.D. Fla. Feb. 2, 2016). 2019] TOWARDS A NEW PARADIGM 1271 foregoing objections,” the responding party will produce documents responsive to the request. Such responses are improper and expose the responding party and counsel to potential sanctions. Responses of this type provide the opposing party and the court with no clue whatsoever as to what is being produced or withheld. These hodgepodge, all-inclusive objections routinely include baseless privilege objections such as attorney–client privilege or work product protection without the production of the requisite privilege log.39 In the words of the late Justice Scalia, such responses are “[p]ure applesauce.”40 The improper use of boilerplate, meritless, mind-numbing objections, following along in-kind with the improper use of overbroad, excessive, and disproportionate discovery requests, is anathema to an efficient, relevant, proportional, cost-effective, and fair discovery process. If you or your firm are engaging in any of these tactics, please stop now! E. Core Component 5: Professionalism, Cooperation, Honest Good Faith, and Personal Conferral Among the Parties’ Counsel When the Inevitable Discovery Dispute Arises Litigation is adversarial. Parties and their counsel routinely have divergent views regarding the validity of claims or defenses. That is to be expected. Hard-fought, important litigation proceeds daily in this nation’s state and federal courts. But just because litigation is adversarial does not mean that it has to be hostile. Nor does it mean that the parties and their counsel must be uncooperative. In fact, hostility and lack of cooperation in litigation between parties and their counsel are counterproductive.41 Hostility and lack of cooperation unnecessarily increase costs and attorneys’ fees, as well as greatly delay the prompt and efficient resolution of a case.42 39. A party asserting a privilege, such as attorney-client privilege or work product privilege, must promptly prepare and serve a complete privilege log. See Fed. R. Civ. P. 26(b)(5); S.D. Fla. L.R. 26.1(e)(1). It is important for litigants to understand that a privilege claim can be waived by failure of the party asserting the privilege to serve a timely and proper privilege log. Devries v. Morgan I Co. LLC, No. 12-81223-CIV, 2013 WL 3243370, at * 3 (S.D. Fla. 2013); Alvar v. No Pressure Roof Cleaning, LLC, No. 17-80725-CIV, 2018 WL 1187777 (S.D. Fla. 2018). 40. King v. Burwell, 135 S. Ct. 2480, 2501 (2015) (Scalia, J., dissenting). 41. See Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 COLUM. L. REV. 509, 516 (1994) (explaining that cooperation between both parties is beneficial). 42. See id. at 564 (noting that adversarial cooperation allows “both sides [to] make every attempt to move the case to resolution as simply, expeditiously and cost-efficiently as is reasonably possible”). 1272 FLORIDA LAW REVIEW [Vol. 71 Discovery disputes routinely arise in litigation,43 which is to be expected. However, when the inevitable discovery dispute arises, it is incumbent upon opposing counsel to engage in good faith, personal conferral to resolve the discovery dispute without the necessity of judicial intervention. When independent resolution proves impossible, counsel should, at the very least, endeavor to limit the discovery dispute. In many instances, opposing counsel are unable to resolve discovery disputes even after good faith conferral. Issues of attorney–client privilege or work product protection, for example, can be thorny and may require judicial resolution. But the vast amount of discovery disputes can and should be resolved by competent counsel who are well versed and trained in e- discovery concepts. Law school curriculum should include discovery law and training, especially in the context of e-discovery. Law students need to learn from the outset what e-discovery is, how to navigate its contours through effective use of e-discovery tools, the rules and case law that govern e- discovery, and how to engage in effective and cooperative resolution of e-discovery disputes so as to best represent future clients. Likewise, law firms and governmental agencies need to teach and train their attorneys and legal staff in e-discovery law, concepts, and tools. The benefits of effective, good faith cooperation among opposing counsel and parties must be paramount in this training process. Law firms and agencies should study and take to heart the Sedona Conference’s Cooperation Proclamation, which promotes “cooperative, collaborative, [and] transparent discovery.”44 Cooperation and zealous advocacy are not conflicting concepts under professional conduct rules.45 In fact, cooperation among opposing counsel, especially in the e-discovery context, is part and parcel of effective, zealous advocacy. Back in 2009, William Butterfield stated, “If parties are expected to continue to manage discovery in the manner envisioned by the Federal Rules of Civil Procedure, cooperation will be necessary. Without such cooperation, discovery will become too expensive and time consuming for parties to effectively litigate their disputes.”46 Nearly a decade later, those words continue to ring true. Lawyers who cooperate with one another in the discovery process are not abdicating their roles as zealous advocates. Rather, they are more effectively 43. Renfrew, supra note 11, at 71–72 (“[A]buse of the judicial process . . . is widespread. [Such a]buse . . . occurs most often in connection with discovery.” (footnote omitted . 44. THE SEDONA CONFERENCE, THE SEDONA CONFERENCE COOPERATION PROCLAMATION 1 (2008). 45. See William P. Butterfield, The Case for Cooperation, 10 SEDONA CONF. J. 339, 344 (2009). 46. Id. at 362. 2019] TOWARDS A NEW PARADIGM 1273 representing their clients by saving their clients’ time and money during the discovery process so the case can proceed quickly and expeditiously to its final conclusion. F. Core Component 6: Limitation of Discovery by the Court to Discovery That Is Relevant and Proportional to Pending Claims or Defenses, as Required by Rule 26(b)(1), and the Elimination of Wasteful or Unnecessary Discovery On a daily basis, federal judges, especially United States Magistrate Judges, deal with the discovery process and discovery disputes. The amendments to the Federal Rules of Civil Procedure in general, and to Rules 1 and 26(b)(1) in particular, have been extremely helpful and valuable in the discovery process and in the resolution of discovery disputes. The increased emphasis upon relevancy and proportionality, both of which must be considered in conjunction, was a welcomed amendment that reverberated throughout discovery-related opinions and orders in federal courts.47 While the evolution of case law interpreting the revised Rule 26(b)(1) is out of this Article’s scope of discussion, the underlying spirit of these amendments and resultant opinions seems clear.48 The goal in discovery under the amended rules is to ensure that the parties obtain the information necessary to prove their claims or defenses without engaging in frivolous, wasteful, or overbroad discovery pursuits. The discovery process should be fair to both sides in every case and must take into account the requisites and facts of each case while keeping the discovery process moving in an efficient and cost-effective manner. John Roberts, Chief Justice of the United States Supreme Court, has weighed in on the discovery process under amended Rule 26(b)(1): The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need. That assessment may, as a practical matter, require the active involvement of a neutral arbiter—the federal judge—to guide decisions respecting the scope of discovery.49 47. See, e.g., Blackrock Allocation Target Shares: Series S. Portfolio v. Bank of N.Y. Mellon, No. 14 Civ. 9372, 2018 WL 2215510, at *6–7 (S.D.N.Y. May 15, 2018). 48. See, e.g., id. 49. ROBERTS, supra note 14, at 7. 1274 FLORIDA LAW REVIEW [Vol. 71 The parties’ counsel must be at the forefront of the discovery process and must keep these concepts in mind when requesting or responding to discovery. Counsel must ensure that they and their clients comply with the letter and spirit of these new rules. G. Core Component 7: Early and Routine Involvement of the Parties’ In-House Information Technology (IT) Professionals During the Discovery Process It is clear that a company’s IT professionals should be the first and best source of information and knowledge regarding the company’s network, its configuration, and the extent and location of a company’s data. Why counsel do not routinely contact their client’s IT experts before responding to discovery is confounding. Sometimes, counsel will claim that production in response to their opponents’ discovery requests would be extremely burdensome and would cause their clients to incur thousands if not hundreds of thousands of dollars. When judges ask counsel if they have been in touch with their clients’ IT professionals or if counsel have obtained an affidavit or declaration of their clients’ IT professionals attesting to the great expense and burden claimed, the answer is often that they have not. Why such a step would not be taken by counsel before making such a claim of excessive burden or cost makes little sense, especially in the spirit of due diligence. Email, still a major source of discovery, can be difficult to locate, collect, and produce without the assistance of the company’s IT professionals. Disputes can occur over how such discovery must be produced—either in native format with metadata or in Adobe PDF format—and the difficulty in recovering responsive emails. Text messages, chats, and new communications technologies add to the e- discovery menu and exacerbate these problems.50 At times, the counsel opposing an e-discovery request will emphatically state how difficult and expensive it will be for the client to produce the discovery, while counsel for the party pursuing the discovery will emphatically state that all the responding party has to do is push a few buttons to obtain the discovery. But, shockingly, neither side has an IT professional’s affidavit or declaration to back up those claims. During litigation, the parties should bring their respective IT professionals into the e-discovery process early and often. In appropriate cases, the IT professionals of opposing litigants should be required to confer and mutually suggest reasonable procedures to ensure the accurate 50. See, e.g., Thomas Bonk, Modern Communication Brings E-Discovery Challenges, LAW360 (July 16, 2018, 4:06 PM), https://www.epiqglobal.com/epiq/media/thinking/ediscovery/ modern-communication-brings-ediscovery-challenges.pdf [https://perma.cc/2RHN-7QNF]. 2019] TOWARDS A NEW PARADIGM 1275 location, collection, and production of relevant and proportional discovery to avoid wasteful and unnecessary discovery pursuits. In the discovery process and during discovery disputes, the IT professional is the attorney’s best friend. Judges do not want to hear attorneys’ unsupported claims of great burden or expense; rather, they want facts from IT professionals upon which they can make a reasoned decision. For this reason, the new paradigm requires attorneys to get their client’s IT professionals involved in the discovery process and in dealing with discovery disputes. H. Core Component 8: Use of E-Discovery Companies, Vendors, and Experts to Assist as Needed in Litigation In many cases, it is not enough to rely solely on the party’s IT professionals to ensure that discovery is preserved, collected, and produced in a transparent and legally justifiable manner. Instead, it is becoming increasingly important for parties and their counsel to retain outside e-discovery experts or vendors.51 This is because while a party’s IT professionals will know and understand that party’s system and network, they are not normally data collection experts. That is, they often do not possess the technological skill or knowledge to collect data in a manner that will withstand the level of scrutiny a legal proceeding brings. Collecting data for parties to use as evidence in a legal proceeding is a complicated process that must be undertaken by professionals who can certify that the procedure followed is proper and complete.52 Moreover, e-discovery experts can employ tools and programs that can make the discovery process more efficient. The use of e-discovery experts provides an attorney with the support needed to represent to opposing counsel that the client has engaged in robust discovery collection, review, and production. Further, if a discovery dispute arises, counsel can credibly argue to the court that their 51. See, e.g., Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 168 (3d Cir. 2012) (“[B]ecause the electronic discovery services are highly technical and beyond the expertise of the [litigants’] own attorneys . . . retaining experts to perform the services are unavoidable.”). 52. See, e.g., Brian Focht, EDiscovery Experts: The Secret Weapons of Modern Litigation, CYBER ADVOC. (July 29, 2015), http://www.thecyberadvocate.com/2015/07/29/ediscovery- experts-secret-weapon/ [https://perma.cc/354J-E23X] (advocating for the hiring of e-discovery experts because lawyers do not typically have the expertise necessary to properly collect this data); see also Tyler D. Trew, Ethical Obligations in Electronic Discovery, A.B.A. (June 5, 2018), https://www.americanbar.org/groups/litigation/committees/professional-liability/practice/2018/ ethical-obligations-in-electronic-discovery/ [https://perma.cc/5P5Q-WPY7] (noting that the “pitfalls” regarding the collection of data “could result in judicial sanctions, ethical violations, and malpractice claims” against a lawyer if the lawyer is not knowledgeable in this complicated arena). 1276 FLORIDA LAW REVIEW [Vol. 71 clients engaged in a transparent and legally justifiable discovery collection, review, and production process. Counsel can more forcefully argue and establish that their clients are not hiding the proverbial ball, and counsel will likely have the necessary foundation and support to avoid or rebuff an opponent’s sanctions motion. The use of such e-discovery experts, vendors, or companies can provide a measure of comfort to the court as well when having to deal with complex discovery disputes. In fact, it is becoming more common for judges to suggest to parties that their respective e-discovery experts communicate with each other and cooperate in an effort to make the discovery process as efficient, economical, and complete as possible.53 The reliability and efficiency of the discovery process can be greatly enhanced by the use of e-discovery experts in appropriate cases. As the legal field embarks further into the twenty-first century and encounters new, rapidly evolving technologies and ever-expanding data sources, the use of e-discovery companies, vendors, and experts will become more than a luxury, but in many cases, a necessity. I. Core Component 9: Greater Reliance on Technology Assisted Review (TAR), Search Terms, Sampling, Artificial Intelligence, and Other Scientific or Technical Methods to Facilitate the Discovery Process in a Transparent and Reliable Manner Moving forward, there will, by necessity, be greater reliance upon technology to assist in discovery collection, review, and production.54 It appears, however, that many litigants, attorneys, and judges are simply not prepared for the technological advances that can provide extensive assistance in the e-discovery process.55 The use of technology to assist the parties, counsel, and courts in discovery collection, review, and production is rapidly evolving and holds great promise if properly guided and directed. Data is pervasive and rapidly expanding. According to one legal commentator, “[I]n 2013, 90% of all the world’s data was created within 53. See, e.g., THE SEDONA CONFERENCE, supra note 44, at 1–3; see also Capitol Records, Inc. v. MP3Tunes, LLC, 261 F.R.D. 44, 47 (S.D.N.Y. 2009) (acknowledging that a party “reflected a failure to heed [the] Magistrate Judge[’s] . . . recent ‘wake-up call’ regarding the need for cooperation concerning e-discovery”). 54. See, e.g., Stephen Embry, 2018 Litigation & TAR, A.B.A. (Dec. 5, 2018), https://www.americanbar.org/groups/law_practice/publications/techreport/ABATECHREPORT 2018/2018LitTAR/ [https://perma.cc/N8C9-ZF8M] (“The percentage of lawyers not using technology in the courtroom continues to drop: 20.6% in 2018 . . . .”). 55. See id. (explaining that about 58% of lawyers only obtain courtroom technology training from the court itself). 2019] TOWARDS A NEW PARADIGM 1277 the previous two years alone.”56 That commentator went on to correctly state, “The rise of ‘big data’ and the commensurate rise of ‘big discovery’ have drastically altered the quantity and types of information produced throughout the discovery phase in litigation.”57 It is a fact of modern life that many of the words that we use to communicate, write, text, email, chat, and speak are captured and collected by various devices, programs, or systems. As stated by U.S. Magistrate Judge John M. Facciola, “The first problem is that this explosion of words has been matched by the ever-increasing capacity of machines to capture and preserve them.”58 The old discovery paradigm is ill-suited to this data explosion. The new discovery paradigm is much better and able to handle it, relying in great part on a scientific methodology known as technology assisted review (TAR), which is also known as “predictive coding” or “computer assisted review.”59 According to the Electronic Discovery Reference Model (EDRM) at Duke Law School: A machine-learning process known as technology assisted review (TAR) is an early iteration of AI for the legal profession. . . . . TAR is similar conceptually to a fully human-based document review; the computer just takes the place of much of the human-review work force in conducting the document review. As a practical matter . . . the computer is faster, more consistent, and more cost effective . . . than human review alone.60 TAR can search extensive amounts of data better, faster, more accurately, and cheaper than humans.61 In effect, TAR involves skilled humans teaching a computer to rapidly, accurately, and reliably search 56. Josh Blane, Note, Drowning in Data: How the Federal Rules Are Staying Afloat in a Flood of Information, 45 RUTGERS L. REC. 65, 65 (2017), http://lawrecord.com/2017/12/27/ drowning-in-data-how-the-federal-rules-are-staying-afloat-in-a-flood-of-information/ [https:// perma.cc/4W97-8VU5]. 57. Id. 58. John M. Facciola, Foreword to Maura R. Grossman & Gordon V. Cormack, The Grossman-Cormack Glossary of Technology-Assisted Review, 7 FED. CTS. L. REV. 1, 3 (2013), https://www.fclr.org/fclr/articles/html/2010/grossman.pdf [https://perma.cc/BM3A-XBHM]. 59. See, e.g., Technology Assisted Review, EDRM AT DUKE LAW SCH., https://www.edrm.net/frameworks-and-standards/technology-assisted-review/ [https://perma.cc/ L7RD-NCC9]. 60. EDRM AT DUKE LAW SCH., BOLCH JUDICIAL INST., TECHNOLOGY ASSISTED REVIEW (TAR) GUIDELINES, at iv (2019). 61. See id. 1278 FLORIDA LAW REVIEW [Vol. 71 and identify relevant documents within large sets of data.62 This means that lawyers or teams of lawyers do not have to sit in a room and risk losing their eyesight reviewing countless documents to determine those that are relevant for production and those that are irrelevant. In conjunction with TAR, the use of search terms to help identify relevant documents and the use of sampling of certain data sets are methods that must be understood and employed in the e-discovery process.63 Many in the legal profession are hesitant to embrace TAR, Artificial Intelligence (AI), search terms, sampling, and related tools or technology. But embrace it they must.64 TAR, AI, and other technological advancements are the only way to deal with e-discovery collection, review, and production in twenty-first century litigation. The data explosion requires legal practitioners and the courts to adopt new machine-learning methods such as TAR and AI to reliably and fairly economize and hasten the e-discovery process. This does not mean that lawyers and judges will be replaced by machines in the e-discovery process. Far from it. Lawyers and judges will be assisted, not displaced, by this new technology. And this complicated and technological process will require the use of e-discovery experts to assist the litigants, their counsel, and the courts in finding the best way to obtain relevant documents from large batches of data. Cooperation among opposing counsel will greatly help in this process, but cooperation will not always carry the day. Disputes will surely arise regarding the methodology of TAR and the types of tools to be utilized by the parties’ experts during the search process. For example, counsel often argue over search terms, sample sizes, and related issues, and then, somewhat desperately, they ask the court to intervene and decide those complicated issues for the parties. Although these issues are best resolved cooperatively by counsel and their technological experts, the court must be ready to quickly resolve any disputes that the parties are unable to resolve. In sum, the cooperative use of this new e-discovery technology, and the use of e-discovery experts to assist with this new technology, is absolutely essential to a fair, balanced, cost-effective, and efficient e- discovery process in twenty-first century litigation. Therefore, litigants, counsel, and judges should consider embracing this new technology to ensure the just, speedy, and inexpensive determination of every action, as required by Rule 1. 62. See id. 63. See id. at 13, 20. 64. Artificial Intelligence (AI) for the Practice of Law: An Introduction, ROSS (Aug. 8, 2018), https://blog.rossintelligence.com/post/ai-introduction-law [https://perma.cc/5N4H-E9CD] (recognizing lawyers’ hesitance). 2019] TOWARDS A NEW PARADIGM 1279 J. Core Component 10: Active Participation of Judges in the Discovery Process and Prompt Resolution of Any Discovery Disputes by the Court The new e-discovery paradigm requires the active participation of federal judges, whether district judges, magistrate judges or bankruptcy judges, during the discovery process. First, the judiciary needs to encourage cooperation among opposing counsel and litigants in the e- discovery process. Second, the judiciary should also mandate such cooperation among litigants and counsel within the bounds of zealous and ethical advocacy. Third, judges should consider taking a proactive approach to discovery so that discovery disputes do not fester and get out of hand. When a discovery dispute does arise, judges should endeavor to promptly resolve any such motion or dispute and promptly set discovery hearings when necessary. Like adhering to a cut on one’s finger, it is much easier to put some Neosporin and a Band-Aid on a discovery dispute at the outset of a case, rather than letting it fester and become infected to the point that it negatively affects the entire body of the litigation. Judges must become more like emergency room doctors and rapidly intervene in a discovery dispute to resolve it before it gets out of hand and the case becomes “infected.” This requires a leadership, hands-on role by the court. As stated by Chief Justice Roberts: Judges must be willing to take on a stewardship role, managing their cases from the outset rather than allowing parties alone to dictate the scope of discovery and the pace of litigation. Faced with crushing dockets, judges can be tempted to postpone engagement in pretrial activities. Experience has shown, however, that judges who are knowledgeable, actively engaged, and accessible early in the process are far more effective in resolving cases fairly and efficiently, because they can identify the critical issues, determine the appropriate breadth of discovery, and curtain dilatory tactics, gamesmanship, and procedural posturing.65 Finally, judges should become knowledgeable in dealing with e- discovery and evolving technologies so that they can effectively handle e-discovery disputes in twenty-first century litigation—and they should insist that counsel appearing before them do the same. CONCLUSION Through a detailed explanation of each core component, this Article lays out the basic nuts and bolts of the new twenty-first century e- 65. ROBERTS, supra note 14, at 10–11. 1280 FLORIDA LAW REVIEW [Vol. 71 discovery paradigm in civil litigation. Faced with an enormous data explosion, the legal field cannot let the volume of data exceed the ability of the e-discovery process to reliably collect, review, and produce relevant and proportional discovery in accordance with court rules. Judges want the e-discovery process to be fair. They do not want cases to live or die solely because of an inability to obtain relevant and proportional discovery. But they also want the process to be efficient, expeditious, and cost-effective. They want to “move the case along, counsel,” while still providing necessary, relevant, and proportional discovery to all parties. This is a real challenge in twenty-first century litigation, but it is a challenge the legal field can meet so long as all stakeholders—litigants, counsel, experts, and judges—agree to work together in a collaborative effort to improve the e-discovery process in civil litigation.

=== Best Practices for Discovery in Federal Court by U.S. Magistrate Judge Bruce E. Reinhart ===

BEST PRACTICES FOR DISCOVERY IN FEDERAL COURT This article expands on some topics discussed during a panel discussion at the 2020 Bench-Bar Conference Federal Practice session. The ideas expressed are purely my own, in my individual capacity, and do not necessarily reflect the views of other judges, the moderators, or the other panelists. 1. The Federal Discovery Framework Many attorneys who generally practice in state court are not familiar with the differences in discovery practices in federal court. Federal court is a fact pleading system. Under the U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), a complaint is subject to dismissal if it does not contain sufficient facts to state a plausible claim for relief. The factual assertions must be “entitled to the assumption of truth,” Iqbal, 556 U.S. at 679, so facts alleged “on information and belief” don’t count. See Scott v. Experian Info. Sols., Inc., 2018 WL 3360754, at *6 (S.D. Fla. June 29, 2018). The actually-pled, plausible claims and defenses frame the scope of discovery. Discovery must be relevant to these claims and defenses. So, you can’t get discovery for the sole purpose of developing new claims or defenses. See Fed. Rule Civ. P. 26(b)(1), Advisory Committee Note (2000) (“The court ... has the authority to confine discovery to the claims and defenses asserted in the pleadings, and ... the parties ... have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings.”) cited in In re Zantac (Ranitidine) Prod. Liab. Litig., No. 20-MD-2924, 2020 WL 5585137, at *2 (S.D. Fla. Sept. 16, 2020) aff'd, No. 20-MD-2924, 2020 WL 6440461 (S.D. Fla. Nov. 3, 2020). That is, the requested information must have some connection to proving or disproving an existing claim or defense. Turco v. Ironshore Ins. Co., No. 218CV634FTM99MRM, 2019 WL 2255654, at *5 (M.D. Fla. Mar. 4, 2019) (“Relevance is determined on the basis of the existing claims and defenses in the litigation, not on unasserted claims and defenses.”). Even if relevant, discovery must also be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). There is no proportionality requirement in state discovery. The Rule 26(b)(1) standard is narrower than the discovery allowed under Florida Rule of Civil Procedure 1.280, which is that the requested discovery is relevant and reasonably calculated to lead to the discovery of admissible evidence. In federal court, a party has an obligation to consider proportionality before propounding a discovery request. By signing a discovery request, a party is certifying that the request is “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.” Fed. R. Civ. P. 26(g)(1)(B)(iii). Requests for production extend to all materials in the respondent’s possession, custody, or control. Fed. R. Civ. P. 34(a). “Control is defined not only as possession, but as the legal right to obtain the documents requested upon demand.” Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984); see also Costa v. Kerzner Int'l Resorts, Inc., 277 F.R.D. 468, 470–71 (S.D. Fla. 2011) (allowing discovery based on a “practical ability to obtain” responsive documents); In re Zantac (Ranitidine) Prod. Liab. Litig., No. 20-MD-2924, 2021 WL 1522449, at *1 (S.D. Fla. Apr. 16, 2021) (discussing “control” in parent-subsidiary context). But, even though many Requests for Production demand “any and all” documents that fall within a particular topic, “Rule 26(g) does not require a comprehensive search of all possible locations where responsive evidence may be found. Nor does it require a perfect or even optimal search. It requires a ‘reasonable’ inquiry.” In re Zantac (Ranitidine) Prod. Liab. Litig., No. 20-MD-2924, 2021 WL 5299847, at *4 (S.D. Fla. Nov. 15, 2021) (approving plaintiff’s proposed search protocol). The federal rules incorporate the concept of initial disclosures, which require a party — early in the case and without a formal request — to produce the evidence it will use to prove its own claims or defenses. Fed. R. Civ. P. 26(a)(1). Evidence not produced as part of the initial disclosures may be excluded at trial. Fed. R. Civ. P. 37(c)(1). Parties often wrongly treat initial disclosures as a trivial formality. In reality, they are designed to expedite the exchange of the bulk of discovery. Think about it, what fact discovery should be left after proper initial disclosures? Logically, it’s only (1) impeachment information, (2) evidence one side has that might support the opponent’s claims or defenses, and (3) evidence in the possession of third parties. So, it is unnecessary (and moot) to propound Requests for Production asking for the evidence that an opponent will use to support its own claims or defenses. Finally, unlike state practice, the federal rules require a party to supplement all discovery responses, including initial disclosures, without further request from the opposing party. Compare Fed. R. Civ. P. 26(e) with Fla. R. Civ. P. 1.280(f). The following chart is designed to show the parameters of federal discovery. 2. Discovery Response Cheat Sheet: A. Written Discovery There are generally four possible responses to a written discovery request, and there is a logical reaction to each one. To assist practitioners, here are the responses and reactions in a simple chart: Response Reaction We have it, here’s all of it I can’t understand what you’re asking for We don’t have any Requesting party should say “thank you” Responding party should contact opposing counsel and ask for clarification. DO NOT OBJECT ON VAGUENESS GROUNDS WITHOUT FIRST SEEKING CLARIFICATION. In fact, unless the other party refuses to clarify, a Court should NEVER be presented with a vagueness objection. Responding party should serve a written response stating that, based on a reasonable inquiry, it has no responsive documents in its possession, custody, or control We have responsive documents, but you’re not legally entitled to have some or all of them As required by Fed. R. Civ. P. 34(b)(2)(C), the responding party should serve an objection stating that responsive documents exist, but are being withheld based on legal objection. Then, they should state the legal objection: -overbroad/disproportionate -irrelevant -privilege (provide a privilege log) - annoyance, embarrassment, oppression, undue burden or expense After meeting and conferring, the parties can ask the Court to rule on the legal objection That’s it. Note that only one of those scenarios requires the Court to get involved. A brief aside. Let me note two common, but unnecessary, discovery scenarios: 1. Party A responds to a request for production by saying either (1) it has produced all responsive documents or (2) it doesn’t have any within its possession, custody, or control. Party B objects that additional responsive documents must exist, so Party A’s response is inaccurate. What exactly is the Court supposed to do? Go to Party A’s offices and conduct an independent search? No. The proper remedy is for Party B to develop a record through interrogatory or corporate representative deposition of what Party A did to try to identify responsive documents (Where did they look? Who was involved in the search process? etc.). If Party B then believes Party A has not fully complied with the discovery request, Party B can seek an appropriate remedy on a developed factual record. 2. The parties cannot agree on ESI search terms, so they ask the Court to decide. How is the Court to know which terms to use, up front? The proponent is in the best position to identify the information being sought. Simply asking for “any and all communications” is not helpful. Ultimately, the responding party is the master of the response. If all else fails, it can unilaterally select search terms that it believes constitute the “reasonable inquiry” required by Rule 26(g). If the requester thinks the response is insufficient, they can then litigate the reasonableness of the search terms. Also, undue burden objections need to be supported by evidence that shows the burden. For example, how long will it take to search and produce the requested materials? How much will it cost? How voluminous are the materials? The same can be true of certain proportionality objections. B. Depositions I see two primary kinds of deposition-related objections. First, a motion to compel the deponent to appear for deposition because the parties cannot agree on a date. Unlike in state practice, this motion is unnecessary in the Southern District of Florida. Local Rule 26.1(h) permits a party to unilaterally set a deposition with sufficient notice. The burden then shifts to the deponent to seek a protective order. In the overwhelming majority of cases, through the lawyers’ civility and professionalism, they can reach agreement on deposition dates. In the rare instances when they cannot, use Rule 26.1(h); don’t file a motion to compel. Second, the deponent will move in advance for a protective order to limit the scope of the deposition. The concern is that the deposition will tread on privileged or irrelevant information. This objection frequently arises in the context of a corporate representative deposition under Fed. R. Civ. P. 30(b)(6), where the deponent objects to the scope of the topics identified in the deposition notice. These preemptive motions are almost universally denied. The preferred practice is to (1) proceed with the deposition, (2) note objections on a question-by-question basis, and (3) if appropriate under Rule 30(c)(2), instruct the witness not to answer a question. After the deposition is over, either party can bring the disputed questions before the Court on a fully-developed record. That way, the Court is dealing with specific questions, not hypothetical ones. 3. Be Careful What You Ask For If you are bringing a matter to the Court, you should be asking for some remedy. The Federal Rules of Civil Procedure prescribe particular remedies for particular conduct. See attached chart. Make sure that the remedy you seek conforms to the conduct in question and cite the rule that authorizes the remedy. You should clearly explain what you want, why you’re entitled to it, and when you want it. That seems self-evident, but frequently lawyers don’t do it. Be careful, however, of going too far -- if you ask for too much, you may get nothing. Do not ask for “such other relief as the Court deems just and appropriate.” Except where bad faith exists, the Court lacks inherent authority to award relief. You need to identify a valid legal basis for relief. Then, the Court can evaluate whether you’re entitled to it. The corollary to this idea of asking for identifiable relief is the “no tattling” rule. Lawyers frequently want to tell the Court that the other side is misbehaving, but do not tie that misbehavior to a legal remedy. The signal is saying, “For the record” or “The Court needs to know”. No, I don’t. As I regularly tell litigants, “I’m not Santa Claus. I don’t care who’s been naughty and who’s been nice. I’m here to resolve a legal dispute.” Almost always, the history behind that legal dispute is not relevant to who wins on the merits. But, the belief that it does matter has a pernicious effect on the conferral process. Instead of having a meaningful discussion to resolve their dispute, the lawyers are focused on posturing by sending self-serving emails they can show to the judge to make themselves look good and the other side look bad. Please know that the judges don’t care. We’re here to resolve the legal dispute. Unless the emails show a party refusing to confer or making a concession that they are now denying making, please don’t submit them. Here are some suggestions for best practices in framing discovery remedies: Remedy you want If you want documents or responses produced by a specific date How to ask for it “Overrule the objection and order them (1) to produce all documents responsive to Request for Production #__ and (2) to serve amended Responses for Production by _____.” the Second Request to “Overrule the objection and order them to serve a complete response to Interrogatory #__ by ____.” If you believe you should not be required to respond to the discovery request: “Enter an order finding that RFP #__ is irrelevant/disproportionate to the needs of the case/unduly burdensome.” If you want monetary sanctions: “Award movant the fees and costs associated with this motion, pursuant to Fed. R. Civ. P. 37(a)(5).” If you want non-monetary sanctions “Strike non-movant’s pleadings pursuant to Fed. R. Civ. P. 37(c).” Overrule/sustain a privilege objection “Find that RFP #__/Interrogatory # __ [calls for/does not call for] information protected by the attorney client/work product privilege.” 4. A Parting Thought One closing thought. Discovery is a necessary part of litigation. Its purpose is to exchange information to allow the parties to efficiently evaluate and resolve their dispute. Financial costs, resource burdens, and time delays are a necessary consequence of proper discovery practice. That being said, it is unprofessional and unethical to make discovery requests and objections solely to drive up costs for an opponent or to delay the resolution of the case. Not only is using discovery litigation solely as leverage improper, it’s also not fun. As Chief Justice Roberts said in his 2015 Year-End Report on the Federal Judiciary: I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics. The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results Use your lawyering skills to deal with the evidence, not to try to keep it from seeing the light of day. You will be a better, happier, more successful lawyer if you do. DISCOVERY REMEDIES Rule 37(a): Motion for an Order Compelling Disclosure or Discovery Rule Remedy Fees? General Motion to Compel 37(a)(1) Order compelling disclosure or discovery Specific Motions to Compel Failure to make or supplement initial disclosure* 37(a)(3) 37(a)(3)(A) 37(c)(1) Order compelling disclosure and for appropriate sanctions — 37(a)(3)(A) Exclusion of non-disclosed evidence unless substantially justified or harmless — 37(c)(1) Attorney’s fees — 37(c)(1)(A) Inform jury of failure to disclose — 37(c)(1)(B) Yes, loser (counsel, client, or both) pays unless substantially justified or unjust Yes 37(a)(5) – loser pays unless substantially justified or unjust Other appropriate sanctions, including (i)-(vi) —37(c)(1)(C) 37(a)(3)(B)(i) Order compelling an answer, production, or inspection 37(a)(3)(B)(iii) 37(a)(3)(B)(iv) 37(a)(3)(B)(ii) Order compelling a designation Failure to answer a depo question* Failure to answer an interrogatory* Failure to produce documents or permit inspection* Failure to designate a 30(b)(6) witness *Evasive or incomplete disclosure, answer, or response “must be treated as a failure to disclose, answer, or respond.” — 37(a)(4) Rule 37(b): Failure to Comply with Court Order Rule 37(b)(1) Remedy Contempt of Court in district where depo taken 37(b)(2)(A) Issue “further just orders” including (i) – (vii) and fees 37(b)(2)(B) (i)-(vi) unless party shows it cannot produce the person. Fees? Presumably yes as part of a contempt sanction Yes. Against party, attorney, or both — 37(b)(2)(C) Failure to comply with order to answer deposition question Failure to obey an order compelling discovery Failure to produce person for Rule 35 examination Rule 37(c) Failure to Disclose, Supplement, or Admit Failure to supplement discovery Rule 37(c)(1) Remedy Exclusion of non-disclosed evidence unless substantially justified or harmless. Fees? Yes Failure to admit 37(c)(2) Attorney’s fees — 37(c)(1)(A) Inform jury of failure to disclose — 37(c)(1)(B) Other appropriate sanctions, including (i)-(vi) —37(c)(1)(C) Expenses (including fees), unless unless request was objectionable, fact was “of no substantial importance,” or other good reason for failure to admit. Yes. Rule 37(d): Failure To Attend Own Deposition, Serve Answers To Interrogatories, Or Respond To Request For Inspection Failure to attend own deposition, answer interrogatory, or respond to RFP Rule 37(d) Remedy Issue “further just orders” including (i) – (vii) and fees No defense that discovery was objectionable, unless file motion for protective order — 37(d)(2) Fees? Yes, 37(d)(3). Against party and/or lawyer unless substantially justified or unjust Rule 37(e): Failure to Preserve ESI Failure to Preserve ESI Rule 37(e) Fees? Not explicitly Remedy If no intent to deprive but prejudice, “measures no greater than necessary to cure the prejudice” If intent to deprive, adverse presumption, adverse jury instruction or adverse termination of proceedings Rule 37(f): Failure to Participate in Framing a Discovery Plan Rule 37(f) Remedy Fees and expenses Fees? Yes Failure to Participate in Framing Rule 26(f) Discovery Plan Rule 26(c): Protective Orders Rule Protective Order 26(c) Remedy If annoyance, embarrassment, oppression, or undue burden or expense: 26(c)(1)(A)-(H) Fees? Yes. Loser pays unless substantially justified or unjust. 26(c)(3) expressly incorporates 37(a)(5) Rule 26(g): Signing Documents and Discovery Requests, Responses, and Objections Failure to Sign Rule 26(g)(2) Improper Certification 26(g)(3) Remedy Other parties have no duty to act and court can strike disclosure, request, response, or objection unless promptly cured “appropriate sanctions on the signer, the party, or both” unless substantial justification Fees? No Yes. Rule 30(d): Deposition Behavior Impeding, delaying, or frustrating fair examination of deponent Conducting deposition in bad faith or to unreasonably annoy, embarrass, or oppress Rule 30(d)(2) Remedy “appropriate sanction — including the reasonable expenses and attorney’s fees incurred by any party.” Fees? Yes 30(d)(3)(C) Order that the deposition by terminated, limit its scope and manner through Rule 26(c) protective order. Yes, if not substantially justified or unjust (expressly incorporates 37(a)(5 === Civil Discovery Remedies Summary Chart ===

Rule 37(a): Motion for an Order Compelling Disclosure or Discovery Discovery Remedies General Motion to Compel Specific Motions to Compel Failure to make or supplement initial disclosure* Rule Remedy Fees? 37(a)(1) Order compelling disclosure or discovery Yes, loser (counsel, client, or both) pays unless substantially justified or unjust 37(a)(3) 37(a)(3)(A) 37(c)(1) Order compelling disclosure and for appropriate sanctions — 37(a)(3)(A) Yes Exclusion of non-disclosed evidence unless substantially justified or harmless — 37(c)(1) 37(a)(5) – loser pays unless substantially justified or unjust Attorney’s fees — 37(c)(1)(A) Inform jury of failure to disclose — 37(c)(1)(B) Other appropriate sanctions, including (i)-(vi) — 37(c)(1)(C) 37(a)(3)(B)(i) Order compelling an answer, production, or inspection 37(a)(3)(B)(iii) 37(a)(3)(B)(iv) 37(a)(3)(B)(ii) Order compelling a designation Failure to answer a depo question* Failure to answer an interrogatory* Failure to produce documents or permit inspection* Failure to designate a 30(b)(6) witness *Evasive or incomplete disclosure, answer, or response “must be treated as a failure to disclose, answer, or respond.” — 37(a)(4) 1 Rule 37(b): Failure to Comply with Court Order Failure to comply with order to answer deposition question Failure to obey an order compelling discovery Failure to produce person for Rule 35 examination Rule 37(b)(1) Remedy Contempt of Court in district where depo taken Fees? Presumably yes as part of a contempt sanction 37(b)(2)(A) Issue “further just orders” including (i) – (vii) and fees Yes. Against party, attorney, or both — 37(b)(2)(C) 37(b)(2)(B) (i)-(vi) unless party shows it cannot produce the person. Rule 37(c) Failure to Disclose, Supplement, or Admit Failure to supplement discovery Rule 37(c)(1) Remedy Exclusion of non-disclosed evidence unless substantially justified or harmless. Fees? Yes Attorney’s fees — 37(c)(1)(A) Inform jury of failure to disclose — 37(c)(1)(B) Other appropriate sanctions, including (i)-(vi) — 37(c)(1)(C) Failure to admit 37(c)(2) Expenses (including fees), unless unless request was objectionable, fact was “of no substantial importance,” or other good reason for failure to admit. Yes 2 Rule 37(d): Failure To Attend Own Deposition, Serve Answers To Interrogatories, Or Respond To Request For Inspection Failure to attend own deposition, answer interrogatory, or respond to RFP Rule 37(d) Remedy Issue “further just orders” including (i) – (vii) and fees Fees? Yes, 37(d)(3). Against party and/or lawyer unless substantially justified or unjust No defense that discovery was objectionable, unless file motion for protective order — 37(d)(2) Rule 37(e): Failure to Preserve ESI Failure to Preserve ESI Rule 37(e) Remedy If no intent to deprive but prejudice, “measures no greater than necessary to cure the prejudice” Fees? Not explicitly If intent to deprive, adverse presumption, adverse jury instruction or adverse termination of proceedings Rule 37(f): Failure to Participate in Framing a Discovery Plan Failure to Participate in Framing Rule 26(f) Discovery Plan Rule 37(f) Remedy Fees and expenses Fees? Yes 3 Rule 26(c): Protective Orders Protective Order Rule 26(c) Remedy If annoyance, embarrassment, oppression, or undue burden or expense: Fees? Yes. Loser pays unless substantially justified or unjust. 26(c)(3) expressly incorporates 37(a)(5) 26(c)(1)(A)-(H) Rule 26(g): Signing Documents and Discovery Requests, Responses, and Objections Failure to Sign Improper Certification Rule 26(g)(2) 26(g)(3) Remedy Other parties have no duty to act and court can strike disclosure, request, response, or objection unless promptly cured “appropriate sanctions on the signer, the party, or both” unless substantial justification Fees? No Yes Rule 30(d): Deposition Behavior Impeding, delaying, or frustrating fair examination of deponent Conducting deposition in bad faith or to unreasonably annoy, embarrass, or oppress Rule 30(d)(2) Remedy “appropriate sanction — including the reasonable expenses and attorney’s fees incurred by any party.” Fees? Yes 30(d)(3)(C) Order that the deposition by terminated, limit its scope and manner through Rule 26(c) protective order. Yes, if not substantially justified or unjust (expressly incorporates 37(a)(5 4 Motion to compel better answers to RFP or Interrogatory where there is no objection. If no legal objection to overrule, what are you asking the court to do? Is it evasive or non-responsive? “They didn’t give us everything” or “They didn’t look hard enough” – best framed as a challenge to the sufficiency of their Rule 26(g) certification. Fed. R. Civ. P. 26(g)(3) Where do objections fit in? 37(a)(1) general motion to compel? 5

=== Federal Civil Discovery Diagram ===

Initial Disclosures (FRCP 26(a)(1 Federal Civil Discovery Traditional Discovery (FRCP 30-36) FRCP 26(a)(2) Evidence in my possession, custody, or control that supports my claims or defenses Evidence in my possession, custody, or control that supports your claims or defenses Evidence in your possession, custody, or control that supports your claims or defenses Evidence in your possession, custody, or control that supports my claims or defenses Relevant Proportional Evidence in possession, custody, or control of 3rd parties Experts

=== 502(d) Sample Rule language ===

Sample Rule 502(d) language e. The parties having agreed to a clawback agreement, and good cause appearing therefore, the Court hereby orders as follows: i. For purposes of this Clawback Agreement, an "Inadvertently Produced Document" is a document produced to a pa1iy in this litigation that could have been withheld, in whole or in part, based on a legitimate claim of attorney-client privilege, work-product protection, or other applicable privilege. Inclusion of any Inadvertently Produced Document in a ii. production shall not result in the waiver of any privilege or protection associated with such document, nor result in a subject matter waiver of any kind. 111. A producing party may demand the return of any Inadvertently Produced Document, which demand shall be made to the receiving party's counsel in writing and shall contain information sufficient to identify the Inadvertently Produced Document. Within five (5) business days of the demand for the Inadvertently Produced Document, the producing party shall provide the receiving party with a privilege log for such document that is consistent with the requirements of the Federal Rules of Civil Procedure, setting forth the basis for the claim of privilege for the Inadve1iently Produced Document. In the event that any portion of the Inadvertently Produced Document does not contain privileged information, the producing party shall also provide a redacted copy of the Inadve1iently Produced Document that omits the information that the producing paiiy believes is subject to a claim of privilege. Upon receipt of a written demand for return of an Inadvertently iv. Produced Document, the receiving party shall immediately return the Inadvertently Produced Document (and any copies thereof) to the producing party and shall immediately delete all electronic versions of the document. v. The receiving party may object to the producing party's designation of an Inadvertently Produced Document by providing written notice of such objection within five (5) business days of its receipt of a written demand for the return of an Inadvertently Produced Document. Any such objection shall be resolved by the Court after an in camera review of the Inadve1iently Produced Document. Pending resolution of the matter by the Court, the parties shall not use any documents that are claimed to be Inadvertently Produced Documents in this litigation.

=== Confidentiality Order forms ===

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 t r u o C t c i r t s i D s e t a t S d e t i n U a i n r o f i l a C f o t c i r t s i D n r e h t r o N UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Plaintiff, Case No. v. STIPULATED PROTECTIVE ORDER FOR STANDARD LITIGATION Defendant. 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal. 2. DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter. 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action. 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action but are retained to represent or advise a party to this action and have appeared in this action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 2.10 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors. 2.13 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Producing Party. 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. However, the protections conferred by this Stipulation and Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, including becoming part of the public record through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 4. DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. The Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify – so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens on other parties) expose the Designating Party to sanctions. If it comes to a Designating Party’s attention that information or items that it designated for protection do not qualify for protection, that Designating Party must promptly notify all other Parties that it is withdrawing the mistaken designation. 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party identify on the record, before the close of the deposition, hearing, or other proceeding, all protected testimony. (c) for information produced in some form other than documentary and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s). 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating Party’s right to secure protection under this Order for such material. Upon timely correction of a designation, the Receiving Party must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed. 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by providing written notice of each designation it is challenging and describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to confidentiality is being made in accordance with this specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its belief that the confidentiality designation was not proper and 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 must give the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first or establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely manner. 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a motion including the required declaration within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality designation for each challenged designation. In addition, the Challenging Party may file a motion challenging a confidentiality designation at any time if there is good cause for doing so, including a challenge to the designation of a deposition transcript or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed by the preceding paragraph. The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality designation by failing to file a motion to retain confidentiality as described above, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party’s designation until the court rules on the challenge. 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 produced by another Party or by a Non-Party in connection with this case only for prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. When the litigation has been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated “CONFIDENTIAL” only to: (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A; (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (d) the court and its personnel; (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order. (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as “CONFIDENTIAL” before a determination by the court from which the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The Designating Party shall bear the burden and expense of seeking protection in that court of its confidential material – and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court. 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non-Party in this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in connection with this litigation is protected by the remedies and relief provided by this Order. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections. (b) In the event that a Party is required, by a valid discovery request, to produce a Non- Party’s confidential information in its possession, and the Party is subject to an agreement with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: (1) promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-Party; (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the information requested; and (3) make the information requested available for inspection by the Non-Party. (c) If the Non-Party fails to object or seek a protective order from this court within 14 days of receiving the notice and accompanying information, the Receiving Party may produce the Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the Non-Party before a determination by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this court of its Protected Material. 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in an e-discovery order that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection, the parties may incorporate their agreement in the stipulated protective order submitted to the court. 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order. 12.3 Filing Protected Material. Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 13. FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in Section 4 (DURATION). IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: ________________________ _____________________________________ Attorneys for Plaintiff DATED: ________________________ _____________________________________ Attorneys for Defendant PURSUANT TO STIPULATION, IT IS SO ORDERED. DATED: ________________________ _____________________________________ United States District/Magistrate Judge 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, _____________________________ [print or type full name], of _________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Northern District of California on [date] in the case of ___________ [insert formal name of the case and the number and initials assigned to it by the court]. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint __________________________ [print or type full name] of _______________________________________ [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. Date: ______________________________________ City and State where sworn and signed: _________________________________ Printed name: _______________________________ Signature: __________________________________ 12

=== Motion to appear pro hac vice ===

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No.: [Case No.] [Plaintiff(s)] Plaintiff, v. [Defendant(s)] Defendant. / MOTION TO APPEAR PRO HAC VICE, CONSENT TO DESIGNATION, AND REQUEST TO ELECTRONICALLY RECEIVE NOTICES OF ELECTRONIC FILING In accordance with Local Rules 4(b) of the Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys of the United States District Court for the Southern District of Florida, the undersigned respectfully moves for the admission pro hac vice of [Name of Atty Seeking Admission] of the law firm of [Firm Name, Address & Phone#], for purposes of appearance as co-counsel on behalf of [Party being represented] in the above-styled case only, and pursuant to Rule 2B of the CM/ECF Administrative Procedures, to permit [Name of Atty Seeking Admission] to receive electronic filings in this case, and in support thereof states as follows: 1. [Name of Atty Seeking Admission] is not admitted to practice in the Southern District of Florida and is a member in good standing of the [Name of Bar & District Court]. 2. Movant, [Movant-FLSD Atty Name], Esquire, of the law firm of [Firm Name, Address & Phone #], is a member in good standing of The Florida Bar and the United States District Court for the Southern District of Florida and is authorized to file through the Court=s electronic filing system. Movant consents to be designated as a member of the Bar of this Court with whom the Court and opposing counsel may readily communicate regarding the conduct of the case, upon whom filings shall be served, who shall be required to electronically file and serve all documents and things that may be filed and served electronically, and who shall be responsible for filing and serving documents in compliance with the CM/ECF Administrative Procedures. See Section 2B of the CM/ECF Administrative Procedures. 3. In accordance with the local rules of this Court, [Name of Atty Seeking Admission] has made payment of this Court=s $______ admission fee. A certification in accordance with Rule 4(b) is attached hereto. 4. [Name of Atty Seeking Admission], by and through designated counsel and pursuant to Section 2B CM/ECF Administrative Procedures, hereby requests the Court to provide Notice of Electronic Filings to [Name of Atty Seeking Admission] at email address: [Atty Seeking Admission-Email]. WHEREFORE, [Movant-FLSD Atty Name], moves this Court to enter an Order [Name of Atty Seeking Admission], to appear before this Court on behalf of [Party being represented], for all purposes relating to the proceedings in the above-styled matter and directing the Clerk to provide notice of electronic filings to [Name of Atty Seeking Admission]. Date: [Today's Date] Respectfully submitted, [Movant-FLSD Atty Name] [Movant's Fla Bar ID #] [Movant's Email Address] [Firm Name, Address & Phone #] [Movant's Phone #] Attorneys for [Movant-Party representing] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No.: [Case No.] [Plaintiff(s)] Plaintiff, v. [Defendant(s)] Defendant. / CERTIFICATION OF [Name of Atty Seeking Admission] [Name of Atty Seeking Admission], Esquire, pursuant to Rule 4(b) of the Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys, hereby certifies that: (1) I have studied the Local Rules of the United States District Court for the Southern District of Florida; (2) I am a member in good standing of [Name of Bar & District Court]; and (3) I have not filed three or more motions for pro hac vice admission in this District within the last 365 days. [Name of Atty Seeking Admission] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No.: [Case No.] [Plaintiff(s)] Plaintiff, vs. [Defendant(s)] Defendant. / ORDER GRANTING MOTION TO APPEAR PRO HAC VICE, CONSENT TO DESIGNATION AND REQUEST TO ELECTRONICALLY RECEIVE NOTICES OF ELECTRONIC FILING THIS CAUSE having come before the Court on the Motion to Appear Pro Hac Vice for [Name of Atty Seeking Admission], Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing (the AMotion@), pursuant to the Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys in the United States District Court for the Southern District of Florida and Section 2B of the CM/ECF Administrative Procedures. This Court having considered the motion and all other relevant factors, it is hereby ORDERED AND ADJUDGED that: The Motion is GRANTED. [Name of Atty Seeking Admission], may appear and participate in this action on behalf of [Party being represented]. The Clerk shall provide electronic notification of all electronic filings to [Name of Atty Seeking Admission], at [Atty Seeking Admission-Email]. DONE AND ORDERED in Chambers at , Florida, this day of . United States District Judge Copies furnished to: All Counsel of Record

=== Consent to Magistrate Judge ===

MAGISTRATE FORMS SAMPLE FORM UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. _______ __________ ) Plaintiff, vs. ) _________) Defendant. ) _________/ CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE In accordance with the provisions of 28 U.S.C. § 636(c), the parties to the above- captioned civil matter hereby waive their right to proceed before a District Judge of this Court and consent to have the Magistrate Judge currently assigned to the case [INSERT MAGISTRATE JUDGE’S NAME] conduct any and all further proceedings in the case (including the trial) and order the entry of judgment. The parties do not consent to the reassignment to any other or successor Magistrate Judge. _________________________ Attorney Name (Bar Number) Attorney E-mail Address Firm Name Street Address City, State, Zip Code Telephone: (xxx)xxx–xxxx Facsimile: (xxx)xxx–xxxx Attorneys for Plaintiff [Party Name(s)] __________________________ Attorney Name (Bar Number) Attorney E-mail Address Firm Name Street Address City, State, Zip Code Telephone: (xxx)xxx–xxxx Facsimile: (xxx)xxx–xxxx Attorneys for Defendant [Party Name(s)] NOTE: Return this form to the Clerk of the Court only if it has been executed by all parties to the case.