By Drew Lewis.
2nd December 2013
In case you hadn’t heard yet, there are changes coming to the Federal Rules of Civil Procedure (FRCP) and these rule changes will greatly impact eDiscovery. Even though the new rules have not been finalized yet, it is likely advisable for litigators to begin to incorporate these new principles into their practice now in order to avoid playing catch up later. Chief among these principles is proportionality (which of course is nothing new, but will certainly seem new to many of our colleagues in the bar who are less well versed in the philosophy of proportional discovery).
In a recent article in Litigation World, Matthew Gillis and Nadine Weiskopf make the argument that proportionality will become an increasingly important facet of eDiscovery and offer some practical advice on how to turn philosophy into action. Among the coming changes that best reflects the spirit of proportionality, we will finally have a more limited scope of what is and is not discoverable (long-time critics of proportionality will often cite the current standard of “reasonably calculated to lead to the discovery of admissible evidence” was so tensile it could be stretched to fit just about any discovery request). The main goal is to limit the information demanded and produced during discovery to that which is “proportional to the needs of the case.” This new limit will (can? should?) help to prevent litigators from using discovery as a weapon against opposition with limited resources. It also protects litigants from having to expose possibly damaging information that is not relevant to the case at hand. However, as with all rules there is always the chance that judges and parties will differ in their understanding of the rules. For instance, on its face it would seem the rule change would prevent legal teams from asking for five years’ worth of email if they only really need email from the last six months. But what if the requesting party can persuade the judge that five years really is needed (by doing nothing more than making the type of argument that today could carry a motion to compel such information – after all, are judges going to instantly change their understanding of the purpose and process of discovery?). Nonetheless, as a result of this amendment, litigators should start thinking now about how to better hone their eDiscovery requests to target the specific information they need. In many ways it is sad to think we needed amendments to the Rules to cause this to happen – litigators should have always been thinking of ways to target the information they need, and they should have abandoned the out dated “you never know what you will find” mentality that has driven the costs of discovery over the edge.
As Gillis and Weiskopf astutely point out, a way to achieve results in a world of proportionality-based eDiscovery is to use early case assessment technology to plan ahead. A main benefit of this technology is that it helps to identify relevant information as early as possible in the discovery process and could allow a responding party to more narrowly collect information subject to review (and thus, lowering processing costs which are still one of the major pain points when it comes to eDiscovery costs). But a corollary advantage is that it helps to locate information that is either missing or detrimental to a case up front. Litigators can use this technology to quickly evaluate whether to pursue a case, settle a case, defend it, etc. In litigation, knowledge truly is power as the more information I have the more skillful I can act as an advocate by uncovering everything we need to know sooner rather than later during eDiscovery. The day before the production is due to the other side is not the time to discover you have a problem – even if that is when many litigants who insist on using more primitive review processes do learn they have a problem.
About the Author:
Drew Lewis is eDiscovery Counsel with Recommind. In this role he consults with outside counsel and in house legal departments about effective discovery strategies and the benefits of implementing predictive coding solutions. Prior to joining Recommind, Drew worked as a commercial litigator with Baker Donelson out of the firm’s Nashville office. Drew has handled all aspects of discovery in his representation of clients, and through his private practice developed a streamlined approach to discovery that was helpful to resolve litigation favorably while still keeping costs in alignment with the budget of the client.
Source: Recommind, Inc