This column is the first installment in a series addressing the challenges and opportunities presented by e-discovery in tribunals lacking any rules or published precedents governing e-discovery.

Given the rapid evolution of e-discovery in the federal courts, it is easy to forget that, only five years ago, the e-discovery amendments to the Federal Rules of Civil Procedure had just taken effect, and most federal district courts had not yet adopted any local rules or standing orders addressing e-discovery. Litigating e-discovery issues with the benefit of court rules, standing orders and published precedents is still only a very recent development. However, the current interest of the federal judiciary in addressing the challenges of e-discovery has distracted attention from the fact that complex civil litigation is still proceeding in many state courts and in arbitration without comparable guideposts. The practice of e-discovery in these forums can present very different challenges from current practice in the federal courts, and commentators who focus solely upon the federal courts ignore the realities of what for most large companies are critical e-discovery battlegrounds.

In these forums, counsel potentially enjoy broad freedom to pursue alternative strategies for e-discovery, but also face the challenges of opposing counsel and a judge or arbitrator who are proceeding with the same lack of constraints and may have very different perspectives. This dynamic places extraordinary demands upon trial counsel to assess the e-discovery strengths and vulnerabilities of all parties early in the litigation, predict how opposing counsel and the court may respond to counsel's e-discovery requests, and then develop and execute an e-discovery strategy.