If litigation is the highest form of gambling, then electronic evidence has upped the ante. You may think the amendments to the Federal Rules of Civil Procedure (FRCP) have us eDiscovery service providers licking our chops, but that’s not the case. The FRCP amendments effectively limit eDiscovery in the face of ever-increasing amounts of data. We too are evolving our roles from simple ad-hoc service providers to (ideally) SME consultants able to be more actively involved in matter preparation at earlier stages of the process. To comply with the amended language and attempt customized, pin-point accuracy for eDiscovery results, these rules are causing us to sharpen our pencils as well. Here is a brief overview of how the relationship is advancing:
Amended Rule 26(f) states that electronic evidence must be discussed at the pretrial conference and that agenda items must include: (1) the preservation of discoverable information; (2) issues relating to disclosure or discovery of electronically stored information, including the form in which it should be produced; and (3) issues regarding claims of privilege or protection as trial preparation material.
Given this change, not only should savvy lawyers make sure that their eDiscovery expert, along with a senior representative from the client IT department, attends this conference. They should also be certain, well beforehand, that their eDiscovery expert has the combined legal procedure and technology wherewithal to sit at the table. The majority of eDiscovery service provider personnel may have strong technical backgrounds, but are not accustomed to the higher discourse that takes place in legal proceedings.
That said, having a dynamic eDiscovery expert in attendance in pretrial will aid in arming yourself for and against a number of additional caveats like the Amended Rule 34(a). You can now call for an agreement to sample the ESI for relevant information prior to compelling opposing counsel to produce - and prior to their own review. This, in effect, can soften the requirement for a show of proportionality by giving you the ability to strategically request data samples. Having a well-versed eDiscovery expert on-hand at this stage will prove crucial as you may have a very hard time convincing the court that you need still more data if relevant information is not found in the sample data set.
Further, amended Rule 26(b)(2)(B) states that ESI need not be produced if the source is not reasonably accessible because of undue burden or undue cost. However, saying data is inaccessible doesn’t necessarily make it so. A savvy eDiscovery service provider can quickly tell you what is and is not accessible using the latest data forensics technology. Moreover, the opposing party may be required to produce despite all objections if the requesting party can show that information is important, relevant and unavailable elsewhere.
Conversely, the amended Rule 37(f), or so-called safe harbor rule, says that “a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” That’s right, without a thorough information governance approach already in place, what happens in a matter is directly attributable to how data was managed, what policies were in place and who managed it for your client before legal hold was even contemplated.
If your client is diligent in their information governance and retention policies, they will likely have a leg-up at the outset of a matter. This is another business management niche that is being rapidly annexed into the eDiscovery service provider space. For too long records retention policies have been ignored or were simply unenforceable without the right technology. eDiscovery experts that don’t already have a valid solution are scrambling to get on the bandwagon.
A properly enforced information governance policy will also give you and your eDiscovery expert the tools needed to Data Map so a you and your client understand where their data resides. This also makes Targeted Collections a possibility, which are far less costly. Next, implementing a thorough early case assessment approach reduces the data sizes further prior to it being reviewed by contract attorneys.
Further, it is widely thought that technology assisted review’s (TAR) efficacy is limited to deduplication and email threading, but the amended FRCP rules make first pass technology assisted review a more viable option than ever as your eDiscovery service provider can likely provide this service for less than one-third of the cost of contract attorney review. There has been an increasing shift away from general TAR defensibility questions and towards specific case management protocols. Regardless of where you land on this discussion, the benefits are two-fold:
Suppose for a moment that you do everything right. You’ve engaged a vetted, fully capable eDiscovery expert from the outset of the matter. You’ve understood your client’s IT infrastructure, identified key data custodians and kept costs down via targeted collections. You’ve even sidestepped cries for proportionality by using TAR to cut costs even further. But, despite all of your efforts, privileged information is produced to opposing counsel.
Enter amended Rule 26(b)(5)(B) and Rule 502 Federal Rules of Evidence, which includes language for a “claw back” process whereby the producing party may inform the other side that privileged material has been produced and, moreover, the requester must “promptly return, sequester, or destroy the specified information and any copies it has” and “take reasonable steps to retrieve” any information already distributed. While nobody wants this to happen, the courts recognize that, in dealing with such vast oceans of data, a safety net must be firmly in place to safeguard against error.
In closing, you may not need to shake in your boots over the amendments to FRCP, but if you practice in federal courts, engaging your eDiscovery team early and often is a great step towards getting a leg-up on the competition. After all, while you may be required to stay technically competent as part of the ethical obligations of your license to practice law, you cannot possibly be expected to know every single trick of the trade.
IST Discover-E presents the latest, most agile eDiscovery collections, processing, review and production platform in the industry today. We recruited The Project Management “Dream Team” from AM Law 100 firms with emphasis on not just technical wizardry, but practical and up-to-date knowledge of the intersection of technology and the law. Our eDiscovery experts and Project Managers have minimum 10 years of experience in eDiscovery and are required to remain accessible to our clients 24/7 in order to provide practical, effective problem-solving. Further, unlike our competitors, IST Discover-E dedicates a lead Project Manager to your matter so you never have to deal with multiple experts with not enough case-specific information. Ultimately, we will take the time to learn the most effective way to work with you.
New FRCP Rules
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