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Fighting Back Against the Burdens of E-Discovery
Practical Law Legal Update w-000-5643 (Approx. 4 pages)
Fighting Back Against the Burdens of E-Discovery
by Practical Law Litigation
| Published on 08 Sep 2015 • USA (National/Federal) |
Ever-increasing volumes of electronically stored information and escalating e-discovery costs have permanently changed the landscape of complex civil litigation. Burdensome, overly broad discovery requests have only made matters worse. Although certain costs and burdens are inherent in complex civil discovery, some relief may be in sight. Upcoming amendments to the Federal Rules of Civil Procedure, which are expected to become effective on December 1, 2015, offer parties some tools to fight back against the burdens of e-discovery.
Ever-increasing volumes of electronically stored information (ESI) and escalating e-discovery costs have permanently changed the landscape of complex civil litigation. Burdensome, overly broad discovery requests have only made matters worse.
Although certain costs and burdens are inherent in complex civil discovery, some relief may be in sight. Upcoming amendments to the Federal Rules of Civil Procedure, which are expected to become effective on December 1, 2015, offer parties some tools to fight back against the burdens of e-discovery by, among other things:
- Imposing significant new limits on the scope of discovery.
- Clarifying the standards concerning the preservation and loss of ESI.
- Fostering cooperation among counsel and early engagement by courts in civil case management.
Although it is difficult to predict the precise impact of these amendments on the costs and burdens of civil discovery, they are aimed at narrowing discovery requests and reducing ever-escalating discovery costs.
Limiting the Scope of Discovery
Because producing parties typically bear all costs associated with production, requesting parties are often incentivized to serve unduly burdensome discovery requests, with little downside or risks to themselves. In an attempt to limit this practice and reduce the scope of discovery, the upcoming amendments:
- Eliminate the longstanding provision that information "reasonably calculated to lead to the discovery of admissible evidence" may be discovered.
- Permit discovery only if the requests are proportional to the needs of the case, based on:
- 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.
- Limit all discovery to information relevant to a party's claims or defenses, rather than the subject matter involved in the action.
(Amended FRCP 26(b).)
Active judicial case management, effective motion practice and better cooperation among the parties can help ensure that these new limits on the scope of discovery are properly applied.
Clarifying Sanctions for Failure to Preserve
Companies often over-preserve vast amounts of data out of fear that some ESI might be lost, and that their actions may in hindsight be deemed negligent or subject them to drastic spoliation sanctions.
To address concerns regarding over-preservation, the upcoming amendments clarify the consequences for the loss of ESI by:
- Requiring a party seeking any remedy for lost ESI to first demonstrate that the ESI:
- was lost because a party failed to take reasonable steps to preserve it; and
- cannot be replaced through additional discovery.
- Allowing a court to craft relief that is "no greater than necessary to cure" any prejudice suffered, where there was no intent to deprive a party of the lost ESI.
- Permitting drastic sanctions like adverse inferences only where there was an intent to deprive.
(Amended FRCP 37(e).)
By clarifying the standards governing the preservation and loss of ESI, the amendments may make it easier for large data producers to decide to discard certain kinds of ESI without fear of being sanctioned. However, the amendments still fail to offer any guidelines concerning the scope or duration of ESI preservation. As a result, parties may continue to over-preserve vast amounts of data out of an abundance of caution.
Encouraging Cooperation and Active Case Management
Efficient and cost-effective e-discovery depends on both a cooperative relationship with opposing counsel and early and active management of e-discovery issues. To better serve these goals, the upcoming FRCP amendments:
- Direct attorneys to work with the court to achieve the "just, speedy, and inexpensive determination of every action."
- Encourage courts to:
- hold pre-trial conferences either in-person or by telephone, rather than by other means;
- enter scheduling orders earlier in a case (see Standard Document, Rule 26(f) Report and Discovery Plan); and
- consider certain e-discovery issues in the scheduling order, such as preservation of ESI, the use of pre-motion conferences to reduce discovery motion practice and the use of FRE 502(d) orders (see Standard Document, FRE 502(d) Order).
Practical Law's E-Discovery Toolkit offers numerous resources designed to help counsel and litigants meet their e-discovery obligations and provides guidance for maintaining, providing and producing ESI in a cost effective and timely manner.