Some believe that the 2015 FRCP amendments, effective December 2015 if Congress does not intervene, will not change eDiscovery practice. I am not one of them. The 2015 amendments were designed primarily to reduce costs for producing parties: the cost of losing a case due to terminating sanctions, the cost of fees designed to punish and costs due to legal review of ever increasing amounts of processed data.
The drafters have succeeded on all three fronts.
(1) Prejudice: Reduced or eliminated terminating sanctions in FRCP 37(e)
Bad evidence behavior, gross negligence or mere negligence in handling preservation and production is no longer enough to trigger sanctions terminating or substantive case sanctions. There is now a long path with key milestones before such sanctions can issue.
After production, there must be a finding that whatever was missing prejudiced the requesting party. The producing party then has a “do over” to make up the harm, perhaps with a supplemental production or a deposition. If the producing party does not make up the harm, the court can order measures no greater than necessary to rectify the prejudice, like attorney fees, costs and other productions.
Only if there is a finding of “intent to deprive” can judges, under 2015 FRCP 37(e), order the more substantive case impacting sanctions like adverse inferences and dismissal with prejudice. This is much different from current practice where in some jurisdictions, negligence or gross negligence is enough to trigger those sanctions.
The Standing Committee on the Rules notes that perfection is not the standard, reasonable steps are the standard:
The proposed rule applies if ESI “that should have been preserved in the anticipation or conduct of litigation of litigation is lost because a party failed to take reasonable steps to preserve it.” The rule calls for reasonable steps, not perfection. As explained in the Committee Note, determining the reasonableness of the steps taken includes consideration of party resources and the proportionality of the efforts to preserve. The Note also recognizes that a party’s level of sophistication may bear on whether it should have realized that information should have been preserved.
(2) Proportionality Moves Up Front to FRCP 26(a)
While proportionality has been available in the FRCP for decades, few judges or producing parties invoked it until recently. Perhaps it was because “burden” arguments went out of vogue and proportionality was conflated with burden, or perhaps it was because it was work, and revealing, to value the case, produce a budget and balance the nonfinancial factors.
Whatever the reason, judges who want to manage their cases from the beginning now have a revalidated tool to balance equities and streamline the case. Litigants have the opportunity and challenge to create early case assessments, buttressed by early data assessments and budgets, combined with valuation of the case from their perspective. These must be quantified and documented in a disclosable manner, without giving up work product.
Further, even where the money analysis tends toward less production, there may be other factors to propound or defend like relative resources of the parties, the parties access to the data and importance of the issues, for example in civil rights or first amendment cases.
(3) Precision: No more fishing expeditions in 26(b)
The 2006 amendments continued the expanded scope of discovery “which appears reasonably calculated to lead to the discovery of admissible evidence.” This clause, the “fishing expedition” clause, was eliminated in the 2015 amendments.
“Relevant to claims and defenses” now takes center stage. Organizations that have issue mapped and data mapped will have a compelling advantage in the meet and confer, scheduling conference and cost of production.
Most commentators believe that this change will not reduce the scope of discovery. My experience is that this clause was the root cause of over preservation, review and production, as the case was not clear from the beginning. Having a clear tie to claims and defenses will reduce wiggle room in case strategy and reduce the scope of discovery. It will also create changes in how complaints are drafted.
There are some other features and challenges in the 2015 amendments. Timing is moved up, not only for understanding and articulating proportionality, but also for the Scheduling Conference and Meet and Confer (lose 30 days). Requests for productions can accompany complaints, and are considered served at the Meet and Confer. 502(d) protective orders to avoid privilege waivers are called out as a possibility for the Scheduling Order. Technology Assisted Review is smiled upon approvingly. Specificity is mandated over blanket refusals or denials. Cooperation is now baked into the rules.
Already, cases are lining up to flesh out what the 2015 FRCP amendments really mean. Judges, practitioners and jurists are looking to other means, like the Federal Rules of Evidence, to regain and supplement the amendments. There is a new push for requestor pays for the next iteration of FRCP changes.
Buckle your seatbelts and get ready to refine case plans, project templates and budgets.
2015 amendments as submitted here.