eDiscovery Daily Blog
Russell Taber: eDiscovery in Tennessee – eDiscovery Trends
We spend a lot of time discussing and referencing the Federal Rules of Civil Procedure, especially the changes adopted in 2006 to address handling of electronically stored information (ESI). But, not all cases are Federal jurisdiction cases. Many are state cases and each state (well, most of them anyway) have their own rules regarding eDiscovery. One of those states is Tennessee. Now, for those who practice law in Tennessee and need to address eDiscovery issues, there is a new book available to provide guidance in addressing those issues.
Electronic Discovery in Tennessee: Rules, Case Law and Distinctions was written by W. Russell Taber III. Russell is an attorney with Riley Warnock & Jacobson, PLC, in Nashville, Tennessee. His practice focuses on business litigation. He is a member of The Sedona Conference® Working Group 1 and is a founding member of The Prometheus Project (The Nashville Chapter of Friends of EDiscovery). Russell has a J.D. from Vanderbilt Law School and a B.A. from Georgetown University. I recently interviewed Russell regarding the book and asked him several questions about the book and about eDiscovery in Tennessee in general.
Why did you decide to write the book and what are you hoping for readers to learn from reading it?
First of all, thank you for the eDiscovery Daily Blog. I’ve been a subscriber for some time and have benefitted from its insights. Thank you also for taking the time for this interview.
I wrote the book as a resource for Tennessee attorneys and legal professionals to use in confronting eDiscovery issues. It begins with the premise: “The era of paper discovery in Tennessee is over.” Though perhaps an unimaginative allusion to a famous political line during an election year, I believe the statement is true. Virtually all information is created electronically. EDiscovery simply cannot be ignored in Tennessee state or Federal cases, large or small. Even so, eDiscovery can be very challenging, and the stakes can be high. Since the most widely discussed cases in the field and at CLE’s often stem from large metropolitan centers in other states, it has been an open question whether that law does or should apply in Tennessee. Before my book, there was no comprehensive resource that sought to address this issue, which I think is an important consideration in much Tennessee litigation.
As I understand it, the Tennessee Rules of Civil Procedure were amended to address discovery of ESI in 2009? How do the Tennessee rules compare and contrast to the Federal Rules adopted in 2006?
That’s right. The 2009 amendments to the Tennessee Rules were patterned largely after the “new” 2006 amendments to the Federal Rules but differ in some respects. For instance, unlike the Federal Rules, the Tennessee Rules do not have a “meet and confer” requirement but do encourage parties to meet and confer if ESI is likely to be at issue. The verdict is still out on what impact this distinction has in practice and on how parties cooperate on eDiscovery.
Another distinction is a rule that compliments the Tennessee state equivalent of Fed. R. Civ. P. 26(b)(2)(C)(iii) and perhaps places additional emphasis on proportionality in Tennessee state court. Under the Tennessee rule, a judge first determines whether the ESI is subject to production. If so, the judge then weighs the benefits to the requesting party against the burden and expense of the discovery for the responding party, considering thirteen non-exclusive factors.
Are there a couple of notable Tennessee cases that you can mention that were impacted by the Tennessee rules or by eDiscovery in general?
Yes. While the degree of culpability that should be required to impose spoliation sanctions has been debated nationally, Tennessee state courts generally have not awarded spoliation sanctions absent destruction of evidence for an improper purpose. In Bellsouth Advertising & Publishing Corp. v. Abebe, the Tennessee Court of Appeals applied this general rule in declining to impose sanctions for a party’s destruction of original documentation pursuant to its document retention practices.
Another notable case is CNX Gas Co., LLC v. Miller Petroleum, Inc. The Tennessee Court of Appeals shifted all the costs (including attorneys’ fees) of collecting, reviewing and producing certain ESI to the requesting party. The court reasoned that the requests for production, which sought ESI “with metadata,” posed an “undue burden and hardship” on the responding party.
Are there any plans to amend Tennessee rules for eDiscovery in the near future? What do you expect to see in the eDiscovery landscape within the state over the next few years?
I’m not aware of any plans to amend the Tennessee rules for eDiscovery. A practitioner in Tennessee can be subject to four different sets of eDiscovery rules depending on whether the case is pending in Tennessee state court or in one of the three Federal judicial districts (two of which have somewhat differing local default eDiscovery rules). I think there is a need for more uniformity in the eDiscovery rules in Tennessee.
We recently started a local eDiscovery group in Nashville (called The Prometheus Project) that is affiliated with Friends of eDiscovery. Our initial meeting last month generated quite a bit of enthusiasm and attracted over 40 attendees. These local groups seem to be emerging throughout the country, and I’m hopeful this trend will spread to other cities in Tennessee.
For more information about the book, including the link on Amazon.com to purchase it, click here.
Thanks, Russell, for participating in the interview!
And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!
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