Will Everyone Who Doesn’t Want EDiscovery Rule Changes Please Raise Their Hand

The Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure is now published online for public comment.  The proposed amendments to the civil rules would affect rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84 and the Appendix of Forms.  All written comments are due by February 15, 2014, and may be submitted electronically or by mail.  Members of the public may also present testimony on the proposed changes at any of three public hearings, scheduled for November 7th in Washington, D.C.; January 9th in Phoenix, AZ; and February 7th in Dallas, TX.

What I am interested in mentioning today are several objections to the proposed rules. The first and most discussed to date is a stirring rebuttal to several of the proposals by Judge Shira Scheindlin. In her recent opinion at Sekisui American Corporation v. Hart,  Judge Scheindlin wrote that the proposed amendment to Rule 37(e) encourages bad practices. Her reasoning is laid out at p. 14 of the opinion when she states: “… imposing sanctions only where evidence is destroyed willfully or in bad faith creates perverse incentives and encourages sloppy behavior. Under the proposed rule, parties who destroy evidence cannot be sanctioned (although they can be subject to “remedial curative measures”) even if they were negligent, grossly negligent, or reckless in doing so….”

She further criticizes the proposed Rule for requiring the innocent party to prove that “it has been substantially prejudiced by the loss of relevant information, even where the spoliating party destroyed information willfully or in bad faith.” A more in-depth summary of Judge Scheindlin’s position on proposed Rule 37(e) titled: Judge Scheindlin Blasts Proposed FRCP Amendments in Unconventional Style is available here in an article by Matt Nelson of Symantec. More on that article in a moment.

But before that  a second critique of the amendments comes from Craig Ball in his article Amendments Should Safeguard Meta-Discovery , originally published on the Ball in Your Court blog, June 9, 2013.

Craig focuses on attempts to reduce costs of e-discovery by narrowing the scope of all discovery. Specifically, he focuses on current Federal Rule of Civil Procedure 26(b), states that parties “may obtain discovery regarding any non privileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. … Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

The proposed amendment to this rule would eliminate all of the language after “claim or defense” and introduce new language designed to force proportionality into the process.  But as Craig points out, the “new”  language is already a part of the rule. In typical fashion Craig notes that “The latter change accommodates lawyers whose attention deficits or narcolepsy prevent them from reading past the first few lines of the current rule. Whether you support the proposed amendment or not, you should be concerned that it makes no provision for discovery of metadata or for discovery about information systems. Such efforts are not always easy to characterize as “relevant to any party’s 291 claim or defense.” Yet, discovery of metadata and information systems is essential in any case involving ESI (i.e., in each and every case). “

Craig is also quite clear in his solution to this issue. “ …  discovery of metadata supporting the utility and integrity of ESI requires discrete recognition in the Rules, even though such data may not directly relate to claims or defenses. The Advisory Committee should make clear in the Committee Notes that they do not seek to limit the discovery of meta-information that is either a part of the evidence or which materially bears on its integrity or utility. “

 Finally, Craig refers to the proposed amendment to Rule 30 that would cut to five the number of depositions that may be taken without leave of court and to limit each deposition to six hours. He is skeptical of this limit, saying  “ I don;t know if five depositions will suffice to shed light on claims and defenses; but, I’m sure five won’t be enough if you have to use them to elicit essential information about information systems and databases from IT personnel and administrators. “

Craig reiterates his earlier assertion that the current rules seem adequate to the task at hand.  How? Through an alert judiciary”  As he notes, “Judges are adept at dealing with abuses, and wield considerable power to rectify actions taken in bad faith. We should trust and encourage judges to do so, just as we should trust counsel not to abuse discovery of meta-information until and unless they have shown they cannot be trusted.”

And finally one final note from commentator Ron Friedmann, who noted in a recent blog post:

Partners John Beisner and Jessica Miller and associate Jordan Schwartz wrote a two-part article in Legal Technology News, Can E-Discovery Violate Due Process? (Part 1 (7 June 2013); Part 2 (10 June 2013)). The authors note the high cost of e-discovery and potential changes to the Federal Rules of Civil Procedure intended to reduce that cost. They argue that “current discovery rules impose substantial burdens that pose a significant threat to defendants’ due process rights.” Specifically, they say that even if the proposed amendments to Federal Rules of Civil Procedure governing discovery become law, defendants will face costs that are too high:

“The reality for most civil litigation is that the defendants’ obligation to bear these exorbitant discovery costs incentivizes plaintiffs to serve burdensome discovery requests on defendants with zero downside risk to themselves…. because defendants seek to avoid these exorbitant costs, discovery is all too often used as a weapon to coerce settlement of claims, regardless of their merit.” and  that “forcing a defendant to pay significant discovery expenses (without any contribution from the plaintiff) absent any finding of liability arguably infringes the defendant’s right to due process.”

Ron recently tweeted a note about this article and subsequently observed that “So far, unlike with many of my other Tweets, I have not managed to engage anyone on the topic.”

Apparently discussion about the Rules and their proposed amendments is simply not generating the extensive discussions many commentators anticipated. As Matt Nelson noted in his article mentioned above: “ … the lack of meaningful dialogue about the role technology and process play in controlling costs is surprising considering proportionality is the mantra of those advocating for Rule changes.”

So why is this?

Matt thinks it’s because we’re missing the point.  That the discussion should about process not procedure but that  “ Surprisingly, neither the current nor the proposed Rules specify that a party’s technology and process should be evaluated as part of the proportionality analysis. That should leave many scratching their heads considering these factors have a significant impact on the burden and cost of e-discovery.”  Matt feels that  “ A meaningful debate about proportionality and the proposed Rule amendments requires a comprehensive diagnosis of the problem. To date, the role of technology and best practices as factors in managing e-discovery costs has not been a central theme of discussion. Hopefully these and other relevant factors will become a more significant part of the dialogue before the period for public comment on the Rules closes on Feb. 15, 2014.”

Now as a longtime proponent that the key to effective litigation is the workflow and not the technology, I find this argument sound, if not compelling.  Because I feel stronger about Craig Balls comments regarding  “… attention deficits or narcolepsy…” .  To my mind, the real question is, do we really need changes to the Rules?  If we constantly hear from judges speaking at legal conferences that 90% or more of the litigators appearing before them don’t understand the current rules, is the answer to change the rules?

Or is it , as I wrote three years ago, Read The Rule Book Shankapotomous?

All written comments regarding the proposed amendments are due by February 15, 2014, and may be submitted electronically or by mail.  Members of the public may also present testimony on the proposed changes at any of three public hearings, scheduled for November 7th in Washington, D.C.; January 9th in Phoenix, AZ; and February 7th in Dallas, TX.

To see the proposed amendments to the Rules of Civil Procedure, click here .  To learn how to submit your comments, click here.

And for a more in depth discussion about this subject, you can attend a free webinar from Digital War Room on Oct. 22nd.  Click here for more details

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