Cooperative process for minimizing discovery burden, expense.

• Author: Hedges, Ronald J.
• Position: Electronically stored information

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The challenges associated with discovery in the world of increasingly voluminous and complex electronically stored information (ESI) are well documented. These challenges call for a different approach to how parties interact with respect to meeting their discovery obligations. The new approach calls for cooperation between parties, beginning in the early stages of discovery, and--more than ever--demands that an organization's legal, IT, and records and information management professionals work together to provide an effective and cost-efficient response.

Traditional Approach: 'Discovery about Discovery'

In the traditional approach to the discovery process, plaintiffs might issue broad requests for the production of documents early in the litigation without much, if any, information about defendants' sources of information. In response, defendants serve boilerplate objections, without disclosing what they are and are not capable of providing. Defendants then proceed to collect and produce what they deem to be a reasonable response, leaving plaintiffs to guess what was and was not done behind the scenes.

More often than not, this results in a protracted process of "discovery about the discovery"--including 30(b)(6) depositions of witnesses about sources of ESI, steps taken to preserve relevant information, document retention policies and practices, and collection and production protocols--followed by disputes, motions, and hearings on whether defendants satisfied their obligations. The result is months, if not years, of contentious litigation about the process of discovery itself, increasing the costs of litigation, wasting judicial resources, and distracting from the merits of the litigation.

New Approach: Meet & Confer

In 2006, the U.S. Federal Rules of Civil Procedure were amended in an effort to address these issues and require parties to deal with e-discovery early in litigation. As noted in the 2005 "Report of the Advisory Committee on the Federal Rules of Civil Procedure" issued prior to the amendments taking effect, "The proposed amendments to Rule 16, Rule 26(a) and (f), and Form 35 present a framework for the parties and the court to give early attention to issues relating to electronic discovery, including the frequently recurring problems of the preservation of evidence and the assertion of privilege and work-product protection."

As noted in the 2007 case Board of Regents of the Univ. of Nebraska v. BASF Corp., "The overriding theme of recent amendments to the discovery rules has been open and forthright...