Corporate Counsel need to be more involved in all facets of litigation involving their enterprise. It is no longer enough to hire outside counsel and assume that they will take care of all your litigation needs. With the recent amendments to the Federal Rules of Civil Procedure (FRCP) in 2016, there are major changes that took place in eDiscovery standards, many of which will impact the litigation being conducted on behalf of the enterprise. Understanding these rules is important in determining how eDiscovery has changed and how you need to respond..
Over the course of the next 18 months, you can expect courts to continue to provide further definition to the concept of proportionality, to increasingly embrace technology in order to keep cases moving and become less tolerant of any attorney who lags behind and relies on outdated rules for submissions to the court. The FRCP have become more important than ever in today’s litigation, and ignoring them is likely to have a negative impact on your cases. So what are some of the major issues that need to be understood?
- Cooperation among parties is expected by the courts.While litigation remains adversarial at its core, the courts have carved out eDiscovery as an area where they expect cooperation. Cooperation is being compelled due to the increased complication of technical protocols and intersection of roles between inside counsel, law firms and service providers. Under the amended FRCP Rule 26, cooperation is now required during eDiscovery. It places the burden on the parties to manage discovery and not the courts.
When the courts see that discovery disputes are the result of non-cooperation, rather than rule on them, they are more inclined to return the disputes back to the parties for resolution. Instead, take the lead on cooperation and work to agree on issues such as scope, search terms, production formats and clawback provisions to speed up eDiscovery. In-house counsel can reduce the costs of addressing eDiscvoery issues upfront and eliminate the costly protracted hearing, technical brief objections, while at the same time keeping the judges from blaming you for delays.
- Understanding “Proportionality” is imperative. There was a significant change to the scope of discovery language of Rule 26(b). The old language that stated that requests that were “reasonably calculated to lead to the discovery of admissible evidence” was removed and replaced with a series of proportionality factors that must be considered. They require parties to consider:
- The amount in controversy
- The resources of the parties
- The importance of the issues at stake in the action AND
- Whether the burden or expense of obtaining the information outweighs its likely benefit.
- In summary, the new requirement is that the discovery must be “proportional “to the needs of the case.
Proportionality is in reality a balancing test, to ensure that parties receive the information that they need to plead their claims and/or argue their defenses, while limiting the expense and time commitment needed. Practically speaking, in-house counsel need to make sure that discovery requests are specific and more narrowly defined in the past and that the request will add value to the case in relation to the expected expense. Counsel should be ready to argue the true needs of the information and prove to the court that your request is as narrow as it can be while still serving your needs. For more details see a previous blog.
- Cost-Shifting is likely to become more prevalent. The proportionality rule will allow courts to closely examine the balance between benefit and burden of requests. So cost will become a factor that can impact discovery in ways it has not in the past. Counsel needs to be prepared to defend or refute costs, and requesting parties should be prepared to foot the bill for costly discovery if a greater benefit cannot be shown to the court. If it is discoverable but burdensome, the court may allow the opposition access to it, but at their expense.
- Steps to maintain data/evidence must be reasonable and defensible. If and when discovery data is lost or destroyed, counsel will need to argue that defensible and reasonable steps were followed by the enterprise. Spoliation under Rule 37(e) changes the expectations of penalties being levied in every case of data destruction. The court should not levy sanctions for spoliation when a party claims lost or stolen evidence if it can be shown that reasonable steps were taken to preserve the evidence. Negligence is not in and of itself will not automatically result in spoliation. Additionally, sanctions should only be levied if the party acted with intent to deprive the opposition of evidence and if the information is not obtainable from alternative locations.
- Use of technology is now to be expected. Technology both increases the efficiency of document review while decreasing the cost of review. No court expects attorneys to lay eyes on each and every document in a collection and there are many advanced technology tools that can be implemented to cull, sort, parse and reduce the sizes of databases that can then be examined by review teams. Combining Early Case Assessment tools along with Early Data Assessment methodology promote the use of technology that results in reducing data sets. Advanced analytics and visualizations provide easy to understand results to assist attorneys in quickly reviewing document sets. Combining the use of advanced technology tools along with claw back provisions to allow for the retrieval of any documents inadvertently produced should relieve in-house counsel of concerns with inadvertent document productions.
While many expect that Predictive Coding will quickly become the standard in the industry, it is still in its infancy and many lawyers are uncomfortable with its use. In the meantime, counsel should make themselves aware of a whole gamut of technology assisted review tools that are easier to understand and accept. Find an experienced eDiscovery professional services provider and develop a relationship with them to provide expertise that is missing in your organization. Their advice will be priceless.