A number of trends and developments during the last few years have made efficiency and technology table stakes for practicing law. Nowhere is this more apparent than in litigation, where the 2015 amendments to the Federal Rules of Civil Procedure (FRCP), evolving ethical duties, and exploding new social and collaboration apps impel lawyers to understand client information systems and the technology available for making e-discovery more efficient.
New Rules Encourage Efficiency
A very significant theme of efficiency and cost savings underlies many of the rule amendments and notes. Amended Rule 1 of the FRCP makes the parties and counsel, along with the judges, responsible for a just, speedy and inexpensive resolution of disputes. Though the word “cooperation” didn’t make it into the rule itself, giving parties and counsel this shared responsibility aims at avoiding such tactics as smothering opposition with overly broad productions or foot-dragging games.1
Timelines are tighter under the new rules too. There is a new requirement that litigants come to the Rule 26(f) conference and the Rule 16(b) scheduling conference prepared to discuss ESI preservation. Rule 16(b) (2) now requires a scheduling order in 90 days (it was 120) from the date the complaint is served or 60 days (it was 90) after a defendant has appeared. Another Rule 26 change allows parties to deliver a discovery request prior to the meet and confer, with the intent to get things moving faster. Speed and efficiency jump out as key objectives of these amendments.
Proportionality Takes Center Stage
Proportionality, which is essentially a cost-benefit analysis to manage the scope of discovery requests, is huge in the new rules. The committee clearly aimed at taking cost and waste out of the discovery process with changes that put proportionality front and center in defining appropriate discovery demands. Amended Rule 26(b) (2) (1) attempts to focus discovery requests on evidence that is relevant to a claim or defense and is proportional to the needs of the case. Litigants and courts now have these factors to determine proportionality:
l Importance of the issues at stake
l Amount in controversy
l Relative access to relevant information
l Parties’ resources
l Importance to the resolution of
the conflict
l Burden or expense versus benefit
This rule still indicates right after the proportionality factors that the information sought need not be admissible at trial. But removal of the language “reasonably calculated to lead to the discovery of admissible evidence” prevents litigants from using this phrase to justify perhaps broad fishing expeditions in discovery requests and keeps the focus on proportionality.2
Preservation – Uniformity and Reasonableness
Changes to Rule 37(e) regarding sanctions for failure to preserve evidence put some reasonableness into the Big Data challenges that organizations face today. The changes also aspire to bring uniformity across the federal circuit courts, where variations on the imposition of severe preservation sanctions occur.
The new rule requires precursors to courts even looking at spoliation sanctions, which can be costly in both dollars and outcome of the action. Courts must determine if ESI is involved, if it should have been preserved, if it is lost, if the party failed to take reasonable steps to preserve the lost ESI,and if the lost ESI is restorable or replaceable with additional discovery. After these determinations, courts can derive an appropriate remedy using a two-pronged approach.
First, when a court finds prejudice to a party from lost information, the court can take steps to cure the prejudice. Second, only after finding intent to deprive the other party of this information, the new rule allows courts to presume the information loss was unfavorable to the party and impose the severe sanctions of jury instruction on the unfavorable presumption, dismissal or default judgment.
Under the new rules, one hope is that companies can take reasonable steps to preserve data, yet still efficiently manage their massive data volumes with automated retention and destruction programs. The fear of severe sanctions has led to very costly overpreservation practices. As Magistrate Judge John M. Facciola commented, “Nobody is held to a standard of perfection; it’s a standard of reasonableness.”3
Sharpen Your Technology Chops
Things will happen faster at the outset under the new rules, making rapid early case assessment crucial. Lawyers must quickly gain an understanding of how information is created, stored and managed under retention programs in a client’s business operations. Taking advantage of e-discovery technology to quickly identify custodians, the types and sources of their potentially relevant electronic information, and how accessible their information is becomes even more important leading up to the meet and confer and the faster scheduling order. A recent white paper4 discusses how the right combination of lawyer insight and search technologies can make all the difference in meeting the newly ratcheted up efficiency demands for e-discovery. Analytics that offer visual representations of such things as data types, volumes, custodian relationships, review milestones and productivity can also speed up e-discovery.
Professional Responsibility and Technology
Evolving professional responsibility rules and opinions for the practice of law increasingly suggest lawyers must understand the fundamentals of e-discovery and technology. The ABA Model Rules of Professional Conduct now require lawyers to maintain skills and knowledge about the benefits and risks of relevant technology as part of their duty of competence. To date,5 17 states have adopted this rule. A recent California bar ethics opinion, CAL 2015-193, states that “attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery.” Attorneys lacking technology expertise can consult experts. Yet the facts in this opinion seem to lean toward requiring lawyers to have a basic understanding of technical e-discovery issues, such as search parameters, how IT does collections, auto-deletion systems and clawbacks.
Technology Assisted Review
In considering proportionality and the burden and expense of producing ESI, the notes in the new rules seem to encourage litigants to consider the use of newer tools, such as technology assisted review (TAR), to search massive amounts of ESI:
“Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available.”6
Though at this point the use of TAR remains dependent on the litigants’ relative sophistication with the technology, and rulings on parameters for protocols and seed document transparency are still evolving, adoption continues to grow, particularly in large organizations. A 2015 survey7 by BDO shows 30 percent of organizations with revenues of $100 million to $1 billion have adopted technology assisted review, compared with nearly 47 percent of organizations with revenues of $1 billion or more.
Given the need to control costs and make large-scale e-discovery more efficient, increased use of TAR seems almost inevitable. In a March 2015 Rio Tinto v. Vale order, Magistrate Judge Andrew Peck states, “the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” With these trends, certainly litigators who handle cases with massive amounts of documents should have an awareness of the risks and benefits of TAR.
Mobility and Exploding ESI Sources
Corporate counsel and their law firms must stay on top of what cloud applications employees are using on company and employee mobile devices. For example, to efficiently respond to e-discovery, your organization needs a “bring your own device” (BYOD) policy that gives you access to business data on employee BYOD devices in the event of litigation or investigations. Evaluating the expertise and technology required to preserve, collect, review and produce ESI from emerging sources – such as Chatter, Gmail™, Office 365, Box, Evernoteｨ, social media, texts and instant messaging – are also key for meeting the new demands in the federal rules and professional codes of conduct.
In conclusion, the recent amendments to the FRCP, ethical duty trends, and emergence of new types and sources of ESI mean litigators must continue to learn about technology. With electronic documents and communications being the very essence of how we work and interact today, no litigator can turn a blind eye to the impact of technology on efficient e-discovery.
Arvind Chigurala, Chief architect for AccessData in Lindon, Utah. [email protected]
1 The Committee notes include this statement: “[e]ffective advocacy is consistent with – and indeed depends upon – cooperative and proportional use of procedure.” Fed. R. Civ. P. 26 Advisory Committee’s note.
2 Fed. R. Civ. P. 26 Advisory Committee’s note.
3 “Just Follow the Rules! FRCP amendments could be e-discovery game changer,” Metropolitan Corporate Counsel, July 17, 2015
4 http://marketing.accessdata.com/mcc.
5 http://www.lawsitesblog.com/2015/03/11-states-have-adopted-ethical-duty-....
6 “Everything You Need to Know about the New FRCP Amendments,” Above the Law Blog, December 1, 2015.
[7] https://www.bdo.com/news/2015-october/corporate-counsel-slow-to-embrace-....
Published January 5, 2016.
