I recently attended the Fourth Annual ASU-Arkfeld eDiscovery and Digital Evidence Conference in Arizona (For those that have not attended, I highly recommend it due to the quality of the sessions). One of the most illuminating sessions was conducted by U.S. Magistrate Judge Craig Shaffer from the district of Colorado. He reviewed the Civil Rules Changes that are likely to be approved by the Supreme Court and implemented on December 1, 2015. He spent time on each of the following, and my suggestion is that if you are involved in eDiscovery, you should make sure you are aware of the changes in the following areas:
My goal in this blog is not to make the rules changes larger than they really are. They are modifications that are meant to improve the daily practice of law in our country, not make it more difficult. Yet the differences, while subtle, are important to understand and incorporate into your daily actions. In fact, Judge Shaffer started the session by sharing this quote from the Rules Committee:
While all of these rules impact the discovery process and more specifically eDiscovery, I am going to focus on the Rules that I consider to have the greatest likely impact.
The proposed language for Rule one is: “These rules….[s]hould be construed, and administered, and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding.”
What the committee is emphasizing is that the parties share the responsibility to employ the rules that are there to guide the system of justice. Effective advocacy is absolutely consistent with and in fact requires cooperation and proportional use of procedure. The additional language puts both the judiciary and the parties on notice that each has a duty to perform in the judicial system. The parties share the responsibility to employ the rules in a matter to achieve the goals of the rule and that it is important to discourage overuse, misuse and abuse of procedural tools that increase litigation costs and only result in delays.
Cooperation is going to be expected moving forward after December 2015 to a much greater degree than ever before. Cooperation over the collection and dissemination about factual matters is not viewed as a weakening of providing the best advocacy on behalf of client. The FRCP are supposed to be about the orderly exchange of required information and judges are no longer going to allow delays and motions for changes without a real argument to support them.
Rule 26(d)(2) is one of the new provisions to the Case Management rules in the FRCP that deals specifically with discovery request prior to the Meet and Confer. This rule will allow the delivery of discovery requests prior to the “meet and confer” required by Rule 26(f). While the response time will not commence until after the first Rule 26(f) conference, the new rule is designed to facilitate focused discussions before and during the Meet and Confer. By reviewing the discovery requests prior to the meeting, discussions will improve the understanding of each parties requests which will likely result in changes to the requests and a likelihood of reaching an agreement without the courts direct input.
Rule 16(b)(3) (“Contents of the Order”) would be amended in two primary ways.
First, courts will be authorized in subsection v to require that parties MUST seek a conference with the court prior to moving for a discovery order. Involving the court in a conference has been found to be an efficient way to resolve discovery disputes without the need to file formal motions and the related time that this adds to the process.
Second, subsection (iii) will permit an order to provide for “disclosure, or discovery , or preservation” of ESI. Preservation language will allow prompt judicial guidance about reasonable preservation if parties cannot reach agreement about preservation issues prior to the filing of any claims.
Third, subsection (iv), in parallel with changes to Rule 26 regarding privilege waiver, will permit an order to include an agreements under Federal Rules of Evidence 502. One purpose of the original Rule 502 was to reduce the expense of producing ESI or other voluminous documents and the parties and judges would consider its potential application earlier in the litigation.
Scope of Discovery/Proportionality (Rule 26(b))
A new proportionality standard for discovery is introduced in Rule 26. Factors include access to the information, the parties’ resources, the importance of the discovery, and whether the burden or expense outweighs its likely benefits. As revised, Rule 26(b)(2)(1) will permit a party to“obtain discovery regarding any non-privileged 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 this scope of discovery need not be admissible in evidence to be discoverable.”
The committee moved the amount in controversy factor to a secondary position behind the importance of the issues, to indicate which factor is more important to consider. Also added is the language which adds the consideration of “the parties’ relative access to relevant information” and that the parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.
Just before publication the Committee added a note to Rule 26 which endorses the use of “computer-based methods of searching” information to address proportionality concerns in cases involving large volumes of ESI. This is a direct reference to tools such as Predictive Coding under the right circumstances.
Changes to Rule 34 regarding objection. : There are several modifications to this rule, but the most important is likely to be that objections must be made with specificity and must state whether any responsive documents are being withheld based on the objection.
An objection to a discovery request must state with specificity the grounds of the objection and the reasons for the objections. Additionally, the objections must state whether any responses materials are being withheld on the basis of an objection. This is to avoid any confusion about whether a production is partial and if so, that some documents are being withheld and require further discussion. This also reinforces the fact that the producing party must turn over information that is not part of the objection and that they cannot withhold all information if they object to certain parts of the request.
The most dramatic change is to Rule 37(e) which has been completely rewritten. This rule is about the Failure to preserve electronically stored information. This rule now only applies to ESI and not to losses of other forms of discovery. Sanctions may be imposed if information that should have been preserved is lost due to a failure to take reasonable preservation measures and the information cannot be restored or replaced. In its entirety the new language reads:
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:
In assessing what is considered “reasonable steps” the Committee makes it clear that proportionality is part of the determination of reasonableness. They go on to further state that reasonable steps does not require perfection, things will ultimately slip through the cracks given the volume of data that is common in current cases. The rule is not applied when the loss of information occurs despite the party’s reasonable steps to preserve the data. The new standard is that good faith by parties has been followed and that fully defensible procedures are put in place.
Experienced e-discovery practitioners who understand and use the FRCP, are technologically savvy and are already performing early data assessment as part of their practice, will likely see minimal effect on their day to day practice from the upcoming FRCP changes.
On the other hand, litigators who do not fit that description will be subject to increased pressure to quickly come up to technological speed. The alternative to becoming proficient in eDiscovery issues is to partner with lawyers that have the requisite experience or to consult with eDiscovery professionals to provide them with the expertise that they are lacking.