Publication

By: Jennifer Foster

Electronic discovery, or “e-discovery,” remains a rapidly-developing field and an area rife with potential pitfalls for the unprepared.  Barring an act of Congress, new federal rules are set to take effect later this year on December 1, 2015, which will further alter the e-discovery landscape.  Indeed, several courts already are taking guidance from these proposed e-discovery rules, for purposes of establishing e-discovery practices and procedures, resolving current e-discovery disputes, and determining the sanctions that may be imposed for non-compliance.  Given the potentially-devastating consequences that may follow from even unintended e-discovery violations, practitioners and clients alike should take care to learn and heed the new rules, the interpretation of which almost certainly will evolve over time.  What follows is a brief explanation of the most important of the anticipated changes to the federal rules affecting e-discovery.

Off to the Races

One aim of the new federal rules of civil procedure is to speed up the process by which e-discovery is discussed, collected, and produced.  To this end, revised Rule 16 of the Federal Rules of Civil Procedure shortens the time within which the court must issue a scheduling order after a lawsuit has been filed.  Specifically, proposed Rule 16(b)(2) requires the judge to issue the scheduling order “as soon as practicable, but unless the judge finds good cause for delay . . . within the earlier of 90 days [down from 120 days in the current rules] after any defendant has been served . . . or 60 days [down from 90 days] after any defendant has appeared.”   Fed. R. Civ. P. 16(b)(2) (emphasis added.)  In addition, revised Rule 16(b)(1) requires direct and simultaneous communications with and between all parties early in the litigation during an initial scheduling conference, which the Rules Committee believed would avoid time delays caused by more indirect communications.  Advisory Committee Notes-2015 Amendment, Fed. R. Civ. P. 16(b)(1) (“The provision for consulting at a scheduling conference by ‘telephone, mail, or other means’ is deleted.  A scheduling conference is more effective if the court and parties engage in direct simultaneous communication, [which] may be held in person, by telephone, or by more sophisticated electronic means.”)  Given the nature and scope of e-discovery issues that may be discussed at this initial conference, serious consideration should be given to inviting e-discovery consultants or internal IT personnel to participate so, for example, clients are forward-looking as to the e-discovery commitments they agree to make.

Don’t Hide the Ball

Similarly, the revised rules allow an earlier process for serving Rule 34 requests for production.  Under revised Rule 26(d), a party may serve requests for production as early as 21 days after service of the summons and petition, thus allowing discovery to begin even before an initial scheduling conference is held and the responding party has had time to answer or otherwise plead.  Fed. R. Civ. P. 26(d)(2) (revised).  Revised Rule 34, in turn, requires the party to whom the discovery requests are directed to respond in writing within 30 days of service “or – if the request was delivered under [revised] Rule 26(D)(2) – within 30 days after the parties’ first Rule 26(f) conference.”  Fed. R. Civ. P. 34(b)(2)(A) (revised).   Thus, the responding party is still afforded the benefit of the Rule 26(f) conference to tailor the items that must be preserved, collected, and produced.  To the extent that a party determines that it is not going to produce documents in accordance with this rule pursuant to objection, the response must specifically state whether responsive materials are being withheld.  Id. 34(C).  Thus, gone are the days of any “hide and seek” games that might be played with broad-reaching objections. 

Proportionality – Defining the Scope

Rule 26 defines the scope of permissible discovery and, with the proposed revisions, now specifically provides that discovery must be “proportional to the needs of the case.”  Fed. R. Civ. P. 26(b)(2) (revised).  Acknowledging that discovery – and, particularly, e-discovery – is very costly, the revised rules provide some limiting principles intended to help the parties gauge proportionality, including:  “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.”  Id.  Notably, the revisions to Rule 26(b) eliminate the suggestion that the scope of discovery will be broadly defined to allow any and all information that may be “reasonably calculated to lead to the discovery of admissible evidence.”  Id.   Despite this limiting principle, however, the revised rule makes clear that discoverable information “need not be admissible in evidence to be discoverable” and that parties continue to have a responsibility to update discovery as litigation proceeds and the issues are narrowed.  Id.  Still, the revised rule provides a springboard to think about e-discovery issues in a new light that may re-focus the issues in a potentially more favorable light for the client who is faced with the onus of e-discovery.

Ignorance is Not a Defense 

Even without the upcoming changes to the federal rules, courts are becoming increasingly savvy to e-discovery practices and procedures and increasingly frustrated with practitioners and clients who do not stay on top of them.  Indeed, the ABA’s Model Rules of Professional Conduct counsel that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”  ABA Model Rule of Professional Conduct 1.1, cmt. 8 (2015) (emphasis added).   At heart, e-discovery is an issue of ethics and one that practitioners and clients must take seriously in order to avoid potentially draconian consequences.

What’s the Harm?

Spoliation, or destruction of electronically-stored information (“ESI”), has become a hot-button issue during the course of the past few years, in part because courts have not taken consistent positions on (1) what constitutes spoliation or (2) what the appropriate recourse is if a party is found to have spoliated ESI.   Where spoliation has been found, there has been no guiding principle as to the sanctions that may be imposed, in part, because the current version of the Federal Rules of Civil Procedure does not define appropriate considerations.  Rather, current Rule 37(e) merely provides: “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.” The proposed revisions to Rule 37(e) are much more explicit, and provide:

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 a party acted with the intent to deprive another party of the information’s use in the litigation may:
   1. presume that the lost information was unfavorable to the party;
   2. instruct the jury that it may or must presume the information was unfavorable to the party; or
   3. dismiss the action or enter a default judgment.

Fed. R. Civ. P. 37(e) (emphasis).  Although there is still plenty of wiggle room for creative argument under the revised rules, these guideposts should help cabin the types of draconian sanctions that oftentimes are requested (and even imposed) for loss of ESI that is wholly unintentional and/or unavoidable.