Today is the big day! New amendments to the Federal Rules of Civil Procedure ("Rules") become effective. Are you ready? Details about the revised Rules, including the text of the Rules, redlines, and detailed comments are available here (and we will post additional information on each key provision in the coming weeks). The focus of this post is answering one simple question: how will these changes impact the way you handle discovery? To comply with the spirit and the letter of these rule changes, you may need to make some adjustments to your discovery practice.
The revised Rules emphasize case management and proactive discovery by adding several mechanisms to front-load discovery decisions and emphasize proportionality in the discovery process. They also provide guidance for when sanctions for failure to preserve electronically stored information ("ESI") are appropriate. How courts will apply these Rules is subject to debate, but if you adhere to the five practice pointers below, you should be in good shape to avoid sanctions, reduce risks, and get to the merits of your case without a discovery sideshow.
#1: Add New Players to Your Roster: Consult with Appropriate eDiscovery Professionals
The single most effective thing you can do to ensure you comply with the new Rules and manage the discovery process efficiently is to engage or involve appropriate resources including lawyers with an understanding of the revised Rules, old rules, relevant case law and the practical intersection of these rules and laws with ever-evolving technology. The complexity of this space has created an entire industry of professionals, both legal and technical, who focus on staying current on the law and technology and who have practical daily experience. Such professionals can help reduce risks and decrease costs by assisting with the other items identified below.
#2: Develop and Implement a Reasonable Preservation Plan
One of the key motivators behind this round of changes to the Rules was to provide a more uniform approach to when courts should impose the most severe spoliation sanctions for failure to preserve relevant ESI. The changes to Rule 37 provide that if ESI 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 the ESI cannot be restored or replaced through additional discovery" the court may employ different remedial measures and sanctions depending on the nature of the loss. Under revised Rule 37, the most severe sanctions are limited to cases where a party acted with the intent to deprive another party of the information's use in the litigation (Rule 37(e)(2)).
Spoliation battles will require an analysis into the preservation steps taken and the reason for any loss of relevant information that prejudices the requesting party. A reasonable preservation plan to protect against sanctions requires considering the facts of each case and understanding the scope and nature of potentially relevant data sources. You cannot preserve what you do not know exists. Make sure you involve appropriate personnel (IT, key custodians, outside counsel, in-house counsel, service providers, etc.) in the discussion to identify relevant systems and practices.
Document your decisions by noting when the various aspects of the preservation plan are implemented and by whom: distributing and tracking the legal hold notice; collecting data for preservation (if required); disabling auto-delete or over-writing of specific systems (if applicable); suspending processes for deletion of ESI from departing employees subject to the hold; etc. If preservation is later questioned, it will likely be months or years later. If you fail to document the process, you may have a harder time showing it was reasonable. We will discuss the burden of proof issues in such battles in a future post.
#3 Throw Away Your Templates for Rule 34 Requests
The Federal Rules, and some of the courts applying them, have tried for years to warn against overly broad document requests and encourage proportionality in the process. But the ever-increasing volume of data and corresponding increased costs to preserve, collect, filter, analyze, and produce relevant information in litigation prompted a renewed emphasis on proportionality in the scope of discovery in the revised Rules.
As revised, Rule 26(b)(1) moves proportionality considerations front and center and allows a party to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering 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."
Ensuring that discovery requests are not overly broad and are proportional to the specific issues in the case requires understanding the nature of the specific claims and defenses and looking hard at each Rule 34 request to decide when you really need "any and all documents" related to a topic and when "documents sufficient to show" a specific fact or issue will meet your needs. Proportionality also requires thinking about the most efficient way to get the information sought based on its significance to the overall matter. The most efficient discovery tool may be a request to admit, a stipulation, an interrogatory or a deposition rather than a broad document request to search through emails and ESI. Proportionality may also require phasing discovery and using categorical privilege logs or other creative case-specific solutions.
#4 Throw Away Your Templates for Rule 34 Objections
Similarly, responding parties can no longer serve blanket objections without specifying what they actually plan to produce/withhold and by when.
An objection to a Rule 34 request must state: (1) "with specificity the grounds for objecting" to the request, including the reasons; and (2) whether anything is being withheld on the basis of the objection. An objection that states the limits that have controlled the search for responsive and relevant materials (e.g., temporal or source limitations) qualifies as a statement that materials have been "withheld." To make specific objections related to proportionality, counsel will need to engage in early discussions with clients (and opposing parties) regarding potential sources of information (custodians, systems, devices, etc.) and the scope of discovery, including relevant date ranges, topics, and the identification of sources that may be inaccessible due to undue cost or other burdens.
Under the amendments, if a party elects to produce copies of documents or ESI, instead of permitting an inspection, the production must be completed no later than the time for inspection specified in the request or another reasonable time specifically identified in the response. When it is necessary to make the production in stages, the response should specify the beginning and end dates of the production.
Throw away those form responses that simply state that you object to requests as overly broad and burdensome, but will produce responsive documents that are not objectionable or privileged, if they exist . . . at some point in the future. Providing beginning and end dates for productions will require actual knowledge of the universe of potential production documents – including the volume that remains after ESI is collected, de-duplicated, processed, filtered, reviewed, and converted to the agreed-upon production format. Timelines must also factor in the time necessary to complete each phase of the document production process.
Practitioners must understand their clients' information systems and data with sufficient detail to develop a plan for collection and production within a specific time frame in a response to Rule 34 requests. In complex matters with diverse ranges of potentially relevant sources, planning for these issues will need to begin before discovery requests are served to allow sufficient time to gather the required details and data (see below).
#5: Collect Data Before Document Requests Are Served
The revised Rules intentionally speed up the discovery process by reducing the time limit for service of process in Rule 4(m); allowing early service of Rule 34 discovery requests before the Rule 26 meet and confer process; and requiring parties to provide the estimated timing of rolling productions (see above). Prior efforts to inspire early discussion and management of discovery issues fell short and the Rules now reflect aggressive timelines that will be challenging to meet without early and proactive discovery management.
Complying with the revised Rules requirements to provide specific information regarding objections as well as timing of productions will require collecting at least some documents and data before you even receive discovery requests and before you serve your responses and objections. Having data in hand allows you to test search terms, analyze volume, and have a more realistic idea of how much time it will take to filter, review, analyze, and produce relevant information.
Early data collection also will help you understand the facts of your case, support proportionality arguments, and comply with your duties under Rules 1 and 26(g).Waiting until the clock starts ticking for a response to start the discovery process will not leave you enough time to gain a sufficient and accurate understanding of the scope of ESI at issue to meet the requirements of the revised Rules.
Finally, Federal Rule 1 provides that the scope and purpose of the Federal Rules are to secure the "just, speedy, and inexpensive determination of every action and proceeding." The amendments clarify that Rule 1 should be construed, administered "and employed by the court and the parties" to achieve these goals. Revised Rule 1 is not intended to "invite ill-founded attempts to seek sanctions for violating a duty to cooperate," but the duty to cooperate to ensure the case is efficiently resolved overlays all of the revised Rules and obligations and requires counsel to proactively manage discovery.
The emphasis on case management and proportionality will require practitioners to address eDiscovery issues early and proactively. Pushing back discussions and decisions regarding substantive discovery issues (with both clients and adversaries) or delaying the collection and analysis of potential document and data sources will put counsel (and their clients) at risk of violating their duties under the Rules.
The most common errors and issues in the eDiscovery space arise from failures to understand technical issues and to manage the discovery process proactively and efficiently. Hopefully, these amendments will improve the emphasis placed on discovery planning and management. We shall see.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
