Tuesday marked the inaugural EDiscovery Day, so to celebrate I attended a few of the sponsored webinars. With the FRCP changes having just gone into effect that day, the Exterro-sponsored webinar “Taking Advantage of the New FRCP EDiscovery Amendments” felt like a great place to start. The webinar covered the basics of the amendments to the Federal Rules for Civil Procedure, and included three experts’ takes on how these changes will affect litigation. As the CEO of a software company specializing in eDiscovery technology, I was very interested to hear how these amendments might change how lawyers preserve and produce case data and to learn how technology might address these problems.
As of December 1st, the FRCP changed for the first time in nearly a decade. The amendments, aimed at eDiscovery practices, serve to refine process expectations and enhance efficiency. Three rules were specifically targeted for their previously vague definitions:
Rule 4: Combined with rule 34(b)(2) and others, the amended Rule 4 encourages cooperation between parties to keep discovery scope manageable and processes timely.Rule 26: The definition of scope has been refined, and must be “proportional to the needs of the case.” The burden of proof lies with the party asking for access to data, and must be presented with an argument as to why the data is necessary.Rule 37: There can now be court sanctions if proper preservation of electronically stored information (ESI) is not maintained – i.e., a case can be dismissed if the necessary ESI has not been maintained, or the party that is at fault for lost data might be required to pay for additional depositions.
Rules 4 and 37 have changed in ways that encourage a more even-keeled interaction between opposing parties, and as such, aid Rule 26 in establishing proportionality by keeping the litigation process on a tight leash. Time spent hashing out scope is kept to a minimum, and costs are reduced by entering an agreement from the onset. If one firm tries any funny business, they can be punished by the court. Both of these rules will have an indirect effect on discovery, but it is Rule 26 that all three experts in the webinar agreed will have the most radical effect on eDiscovery.
Rule 26 aims to directly rein in the scope of discovery to avoid unnecessary costs and time. However, by requiring more evidence to support why you are requesting or denying access to data, a hydra-type situation might occur. For example, when a firm argues against having to produce a certain set of emails because it will be too costly or burdensome, that could result in the judge or opposing counsel requesting additional discovery into the firm’s financials or depositions from IT experts. While Rule 4 helps the two parties agree on an appropriate scope at the onset of a case, the process to broaden the scope can lead to spending more time and money on discovery to demonstrate that they need to spend more time and money on discovery. Additionally, the firm with better access to legal technology is given a substantial upper hand because they can prove how easy it is to provide certain data and argue that opposing counsel do the same. Also, a firm may be at the mercy of whether or not the assigned judge is tech-savvy enough to speak to the eDiscovery options available when making a decision on the scope of discovery.
Because proportionality is at the forefront of the changes, eDiscovery technologies are now more relevant than ever before. Having an effective ecosystem for preserving ESI will allow firms to more efficiently collect, process, and analyze data, therefore making it easier to argue for further discovery if necessary, or to deny further discovery in the case that the other party is making unduly burdensome or unproportional requests. Gone are the days when counsel can simply refuse a request by vaguely asserting that it places “undue burden” on the firm. Under the new Rule 26, the firm with better eDiscovery tools can make a clear case for their refusal or a clear case for why it is necessary the other firm complies. The more targeted and pinpointed the tools, the higher the efficiency, and the more pull the firm has during litigation. By adding tools like dashboard reporting or automated redaction, discovery processes can be expedited, enhanced, and easily explained to the court. In other words, the right pair of shoes will make all the difference in a foot race to the finish line.
For more information on the FRCP amendments, see the following:
http://www.theediscoveryblog.com/2014/10/07/part-iii-frcp-amendments/ http://www.law360.com/articles/654798/digging-through-the-new-federal-rules-of-civil-procedure http://abovethelaw.com/2015/12/everything-you-need-to-know-about-the-new-frcp-amendments/ http://www.newyorklawjournal.com/id=1202743563205/FRCP-Amendments-Take-Effect-Impacting-EDiscovery-Practice?slreturn=20151101181712