For better or worse, eDiscovery and the age of "Big Data" has changed discovery. The past decade has seen a precipitous increase in the amount of information in the average person's possession. The consequence, for discovery, is that everything is more expensive: identification, preservation, collection, review, production and presentation. Combine all of that with headline-grabbing sanctions awards and it is not unusual for discovery to take a primary role in shaping litigation decisions, which is principally incorrect.
After much speculation, the amendments to Federal Rules of Civil Procedure 1, 4, 16, 26, 30, 31, 34, 37, 55 and 84 went into effect on Dec. 1, 2015. The amendments that will most affect e-discovery are the changes to Rules 1 (cooperation), 26 (proportionality and scope of discovery), 34 (objections), and 37 (sanctions).
The change to Rule 1 embodies the cooperative theme of these amendments: "[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."
The idea behind this change is to make it explicit that all parties share in the obligation to employ the Rules in a way that limits the scope of discovery to information relevant to the claims and defenses in the litigation i.e. fishing expeditions are now a thing of the past.ﾠ In fact, the less likely a request is to catch relevant evidence the more likely the requesting party will have to pay for the cost related to produce.
The proposed revision to Rule 26 further addresses the ills of overdiscovery by removing the familiar and well-worn "reasonably calculated to lead to the discovery of admissible evidence" language.
Instead, the new rule invokes proportionality to tighten the scope of discoverable information to any non-privileged, relevant matter that is “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, theﾠparties’ relative access to relevant information,ﾠthe 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.”
Thus, a party seeking to compel discovery must now at least make a showing of proportionality in addition to the current requirement of a showing of relevance. When realistically applied, the impact of the revision will be on the initial expression of discovery requests, as opposed to the ultimate implementation in any given case. After all, it should be in everyone's interest to pause at the outset to consider whether the discovery being pursued is actually worth the time and effort that it will require.
Similarly, responding parties can no longer serve blanket objections to eDiscovery requests without specifying what they actually plan to produce or withhold and by when. An objection to a Rule 34 request must state: (1) "with specificity the grounds for objecting" to the request, including the reasons; and (2) whether anything is being withheld on the basis of the objection.
The new rules further provide an expedited schedule in the early stages of a case, such as requiring a court to issue a scheduling order within 60 days of a defendant being served, instead of the previous 90-day deadline.ﾠﾠ Discovery may also be expedited to allow service of document requests just 21 days after the summons and complaint are served--before a Rule 26(f) conference has been scheduled.
That's right, throw away those form responses that simply state that you object to requests as overly broad and burdensome, but will produce responsive documents that are not objectionable or privileged, if they exist, at some point in the future. Providing beginning and end dates for productions will require actual knowledge of the universe of potential production documents—including the volume that remains after ESI is collected, de-duplicated, processed, filtered, reviewed and converted to the agreed-upon production format. Timelines must also factor in the time necessary to complete each phase of the document production process.
Despite the attention on the scope of discovery in revised Rule 26, the change to Rule 37(e) represents the most significant change of this current set of amendments as they harmonize the disparate approaches to sanctions amongst the circuits.
The new, entirely redrafted Rule 37(e), provides as follows: If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another part of the information's use in the litigation may:
(a) presume that the lost information was unfavorable to the party;
(b) instruct the jury that it may or must presume the information was unfavorable to the party; or
(c) dismiss the action or enter a default judgment.
Revised Rule 37(e) only applies to electronically stored information. The benefits of this change might be slow to materialize, as courts grapple with the tricky issue of what exactly constitutes "reasonable steps" in the service of preservation. Further, litigants will face challenges being able to identify what was lost and how it might be replaced, to say nothing of the difficulty in articulating just how important that information is to the case. How courts will apply these rules is subject to debate, but while this won't bring an end to the practice of "litigating the litigation," it should provide some much-needed relief.
In closing, to comply with the spirit and the letter of these rule changes, you may need to make some adjustments to your discovery practice. The revised rules emphasize case management and proactive discovery by adding several mechanisms to front-load discovery decisions and emphasize proportionality in the discovery process.
The single most effective thing you can do to ensure you comply with the new rules and manage the discovery process efficiently is to engage or involve appropriate resources, including eDiscovery experts like the tenured professionals at IST Discover-E who have a thorough understanding of the revised rules, old rules, relevant case law and the practical intersection of these rules and laws with technology.
The complexity of the eDiscovery space has dictated that IST only hire Project Managers with at least ten years of experience in the field, with both legal and technical backgrounds, who focus on staying current on the law and technology and who have practical daily experience. IST Discover-E can help reduce risks and decrease costs by helping you gain total understanding of your ESI universe prior to litigation.
"A New Era of Cooperation for E-Discovery Rules?" Daily Report. 9 Oct. 2015. Web.
"Proportionality and the Scope of Discovery in 2015 Amendments." Daily Report. 6 Nov. 2015. Web.
"The 2015 Amendments: A Sensible Approach to Spoliation Sanctions." Daily Report. 4 Dec. 2015. Web.
Weber, David. "New Federal Rules of Civil Procedure Promote Discovery Readiness." Digital Discovery. 14 Dec. 2015. Web.
Grounds, Alison. "5 Tips for Meeting the New Federal Discovery Rules." Daily Report. 23 Dec. 2015. Web.
Changes in the Rules of eDiscovery