Defending The Digital Workplace

An ebusinesscounsel.com publication

Enter the Digital Dragon: Michigan Adopts E-Discovery Amendments to Civil Court Rules

The process by which Bruce Lee revolutionized the martial arts world provides valuable insight for business organizations in responding to the January 1, 2009 Amendments to the Michigan Court Rules. These amendments expressly require litigants to address electronically stored information (ESI) or — as it is often referred to — e-discovery. Click here for a copy of these amendments.bruce_lee3

In regard to Bruce Lee, in 1964 he was challenged to a fight by a Hong Kong martial artist, Wong J. Man. This challenge was accepted and Lee, of course, won. But Lee was disappointed in his performance because the fight lasted too long (approximately 3 minutes!). This disappointment resulted in Lee looking at his fighting style, Wing Chun, and what was effective, what was ineffective, and how it could be improved by researching other combat styles. Ultimately, Lee  synthesized his analysis and research, which borrowed heavily from Western Boxers Jim Driscoll and Jack Dempsey and the fencing genius Aldo Nadi into a “new style” he called “Jeet Kune Do,” or the “Way of the Intercepting Fist.”

While incorporating a thing or two from the likes of Lee, Driscoll, Dempsey (and I guess the French guy) into my business law practice would likely expedite resolutions, there are more practical (and less risky) take-a-aways for defending the Digital Workplace in response to e-discovery rules:

First, companies subject to Michigan state court jurisdiction should evaluate their litigation strategies under Michigan’s amended rules. These rules substantially follow the 2006 e-discovery amendments to the Federal Rules of Civil Procedure and, accordingly, address how ESI should be preserved, produced, allocation of e-discovery costs, use of claw back agreements, and form of production. The new rules also include a “safe harbor” provision intended to protect parties who, in good faith, inadvertently delete ESI relevant to litigation. This Safe Harbor provision is especially important for corporate clients and with respect to sanctions. Michigan is one of approximately 19 states that have added court rules to address e-discovery.

Second, while litigation under e-discovery rules is slightly less than mildly interesting, it takes on a sudden significance when you consider that 25% of the approximately 138 reported e-discovery opinions issued under the federal rules from Jan. 1, 2008 to Oct. 31, 2008, 25% concerned sanctions (including $8,568,633.24 in sanctions against a party and a referral of its inside and outside counsel to the State Bar of California for further investigation and possible imposition of sanctions). See my prior post: The Silver Bullet for Business Success. So the well-reasoned take away for business organizations and their attorneys is, don’t screw up.

Third, and borrowing from a black belt management guru, Peter Drucker said, “[t]o defend yesterday is a larger risk than to create tomorrow.” A black belt legal strategy will go along way in minimizing the challenges and leveraging opportunities under both Michigan and federal e-discovery rules. Hopefully it won’t take a litigation fight that lasts too long for business organizations to  revise yesterday’s legal strategies to address today’s challenges under both state and federal e-discovery rules.

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Written by Jason Shinn

January 13, 2009 at 10:06 am

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