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Those Little 8 Words: Experts Weigh-In on e-Discovery Proportionality and the FRCP

Arvind Chigurala

Mar 03 2016

The most significant reforms to electronic discovery rules under the Federal Rules of Civil Procedure (FRCP) since 2006 went into effect on December 1, 2015. “The amendments may not look like a big deal at first glance, but they are,” said Chief Justice John Roberts.

AccessData recently kicked off a series of Webinars designed to educate legal professionals with “The Good, The Bad and The Ugly of the FRCP Amendments,” a special program moderated by Bruce MacEwen, president of Adam Smith, Esq.

“The Supreme Court approved several amendments to the FRCP, the most notable of these changes is the new standard of ‘proportionality’ in e-Discovery,” said MacEwen. “While proportionality should make litigators’ lives easier, the new requirements demand a more focused and accelerated approach from litigation teams.”

The general concept of proportionality has been a part of the federal rules for quite some time, but the changes to Rule 26 are designed to encourage opposing counsel to be reasonable, proportional and willing to cooperate. The Webinar panelists identified specific proportionality factors identified in the new FRCP Rule 26: the importance of the issues at stake; the amount in controversy; access to relevant information; the resources of the parties; the importance of discovery in resolving the conflict; and the burden imposed on litigants versus the likely benefit to the resolution of the dispute.

“As Chief Justice Roberts noted, it’s just eight short words that have been added to the FRCP, but the impact will hopefully be substantial,” said panelist Julie Anne Halter, partner at K&L Gates. “The new rules only went into effect a few months ago, but we’re already seeing some important movement toward proportionality, which is very encouraging.”

Halter explained that the new rule makes proportionality factors “an explicit component of the scope of discovery” – and therefore requires that they be considered when litigants are pursuing discovery and when courts are resolving discovery disputes.

“The concept of proportionality isn’t new, but I’m not sure that anyone truly believes there has been proportional discovery in practice since the 2006 amendments,” said panelist Thomas Barnett, special counsel for eDiscovery and data science at Paul Hastings, a widely recognized e-Discovery expert and experienced litigator. “The biggest difference now is that parties really feel these changes are mandated and there are consequences to not cooperating on the new standards.”

“Under the new rules, courts are expecting parties to come into Rule 16 conferences armed with the information to respond to document requests, not with the old boiler plate objections but with real concrete information regarding the size, scope, time and cost of the discovery work required,” said panelist Samantha Ettari, e-Discovery counsel at Kramer Levin. “These changes really front-load much of the work and force the parties to hash out the disputes over proportionality right at the outset.”

Halter shared a few tips for pre-litigation planning that will assist in-house counsel and their litigation teams with complying with the new proportionality requirements: (1) Know what information exists and where it lives; (2) Establish clear data retention policies about how long to keep it; and (3) Understand how to access that data and who is authorization for access.

“If we get the kind of cooperation needed to make these new rules work, I think we can really go a long way toward reducing the burdens and the costs associated with an unreasonable scope of discovery,” she said.

The panelists also discussed some of the new e-Discovery workflow improvements that will assist litigation teams in their efforts to comply with the new FRCP guidelines:

· Litigators have a greater duty of cooperation with opposing counsel, which can be facilitated by collaboration tools.

· The parties are now required to accelerate the discovery process, placing a greater urgency on conducting early case assessment.

· Discovery must be streamlined as much as possible, a process made possible with an enterprise-wide, end-to-end e-Discovery software platform.

“Failure to preserve” has been redefined, a serious consideration for litigation teams that can be managed with the aid of software tools that track legal holds.

The first in the three-part series was successful at helping attendees better understand the new changes to the rules, and begin to think about their implications in practice. “I learned a great deal about the specifics of each rule and the importance of having a information governance program in place,” commented one attendee after the Webinar. “I am now prompted to inquire at my firm if these practices are in place.”

To listen to an audio recording of the AccessData Webinar, please click here. To register for upcoming programs in this special Webinar series, please click here.

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