Electronic Discovery

• Jurisdiction: United States,Federal
• Publication year: 2016
• Citation: Vol. 67 No. 4

Electronic Discovery

K. Alex Khoury

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Electronic Discovery

by K. Alex Khoury^*

The most significant developments in electronic discovery (E-Discovery) law in the Eleventh Circuit in 2015 were the latest amendments to the Federal Rules of Civil Procedure (Amendments), which went into effect on December 1, 2015. As with the last round of amendments in 2006, the 2015 Amendments primarily addressed the rapidly expanding and evolving practice of E-Discovery. Some of the amendments are minor tweaks to existing rules that will have little or no impact on current precedent. Other amendments introduce entirely new rules designed to give the courts and the parties new tools to corral the beast that is E-Discovery. There is debate over whether the Amendments will result in any meaningful changes in federal civil practice. Questions about the efficacy of the Amendments, however, will not be answered until next year's survey period, when the first wave of district court opinions applying the new rules start to come down.

I. E-Discovery Amendments to the Federal Rules of Civil Procedure

The 2015 Amendments are underpinned by a familiar theme—the expense of discovery impedes the resolution of disputes on their merits. This same mantra was one of the driving considerations for the adoption of the Federal Rules in 1938.¹ Prior to the Federal Rules, there was no consistent mechanism to require a party to exchange evidence with an opposing party.² Wealthy parties could devote more resources to

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discovery and thus have an unfair advantage in the "trial[] by ambush" environment of the day.³ That imbalance, it was argued, dissuaded less affluent parties from pursuing meritorious claims.⁴ To level the playing field, the drafters adopted rule-based discovery.⁵

Seventy-seven years later, the exponential growth of data creation and retention is driving rising discovery costs and delaying the determination of claims to the point that even wealthy litigants are reticent to see their claims through to trial.⁶ Thus, the Civil Rules Advisory Committee (the Committee) set to work once again with the goal of making litigation accessible to all. As shown below, the Committee used three overriding strategies to accomplish the goal: (1) restraining the scope of discovery; (2) encouraging active case management by the courts; and (3) encouraging more cooperation between the parties.⁷

A. Rule 1 — Aspiration for Cooperation

The drafters amended Rule 1⁸ to set the tone for the rest of the 2015 Amendments. Prior to amendment, the rule admonished that the Federal Rules were to be "construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding."⁹ Rule 1 was silent, however, as to who was responsible for construing and administering the rules to obtain these lofty goals.¹⁰ The Committee Note following the 1993 amendment to Rule 1 clarified that the court and attorneys, as officers of the court, have the duty to administer the Rules for the just, speedy, and inexpensive determination of claims.¹¹ The 2015 Amendment makes clear the "court[s] and the parties" are responsible for using the rules to obtain just, speedy, and inexpensive results.¹² The Committee Notes provided that the drafters did not intend the amendment to Rule 1 to create any new obligations on the parties but rather intended to encourage the parties to cooperate in furtherance of the goals of Rule 1.¹³

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B. Rule 16—Early, Direct Communication

Rule 16¹⁴ addresses case management by the courts. The intent of Rule 16 is "to encourage the active judicial management of the case development process."¹⁵ The amendments to Rule 16 show a strong desire to get judges communicating with parties on E-Discovery topics earlier in the case.¹⁶ This theme runs throughout the 2015 Amendments.

The first change to Rule 16 appears in subdivision (b)(1)(B), which previously allowed judges to conduct a scheduling conference "after consulting with the parties' attorneys and any unrepesented parties . . . by telephone, mail, or other means."¹⁷ The Committee deleted the "by telephone, mail, or other means" language, noting that "[a] scheduling conference is more effective if the court and parties engage in direct simultaneous communication."¹⁸ Under the new rule, scheduling conferences should "be held in person, by telephone, or by more sophisticated electronic means."¹⁹

Next, the Committee set about encouraging the court and the parties to engage in "direct simultaneous communication" earlier in the case.²⁰ Under the amended Rule 16(b)(2), the court must issue a scheduling order within the earlier of 90 days (formerly 120 days) after any defendant has been served with the complaint or 60 days (formerly 90 days) after any defendant has appeared.²¹ Thus, new Rule 16(b)(2) lessens the maximum time the court has to issue its scheduling order by thirty days. However, the new Rule 16(b)(2) gives courts the discretion to extend the time for issuing a scheduling order for good cause.²²

To get the court and the parties talking about E-Discovery, the Committee added three new items to the list of subjects that may be included in scheduling orders.²³ First, scheduling orders may now address the "preservation" of electronically stored information (ESI) in addition to its disclosure and discovery.²⁴ By encouraging the court and the parties to discuss preservation of ESI early in the case, the

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Committee hopes to reduce the frequency of spoliation motions.²⁵ Second, revised Rule 16(b)(3) permits scheduling orders to include Federal Rule of Evidence (F.R.E.) 502 agreements.²⁶ F.R.E. 502 agreements allow parties to inadvertently produce privileged information without waiving the applicable privilege.²⁷ These types of agreements are essential in E-Discovery because they reduce the risk of privilege waiver in large document productions—a risk that significantly adds to the cost and delay of document reviews.²⁸ Third, the new Rule 16(b)(3) allows the court to require parties to request a conference with the court before filing discovery motions.²⁹ This addition encourages judges and parties to talk about discovery disputes before plunging into contentious motions practice.³⁰ All three additions to Rule 16(b)(3) encourage the court and the parties to discuss discovery concerns early in the case to reduce protracted and expensive motions practice later.

Looking deeper, the Committee amended Rule 16 to create opportunities for the court and the parties to reach agreement on E-Discovery topics before the parties become entrenched in discovery battles.³¹ This type of "cooperation" is the most effective means of controlling the escalating costs and delays caused by E-Discovery and is in keeping with the spirit of Rule 1. Whether the courts and the parties will take advantage of these opportunities remains to be seen.

C. Rule 26—The Scope of Discovery Redefined

Rule 26³² received some of the most significant, and controversial, changes of the 2015 Amendments. In particular, the amendment of Rule 26(b)(1) redefined the scope of discovery.

Amended Rule 26(b)(1) provides as follows:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged

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matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.³³

Put simply, the scope of discovery is now defined as any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.³⁴

Proportionality is determined by examination of six factors, which, with the exception of the third factor—the parties' relative access to relevant information—are not new concepts.³⁵ The Federal Rules have used the proportionality factors to limit the scope of discovery for more than thirty years.³⁶ The factors first appeared in the 1983 amendments to the Federal Rules when the Committee inserted the following language directly into Rule 26(b)(1):

The frequency or extent of use of the discovery . . . shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation.³⁷

In the 1993 amendments, the Committee moved the proportionality factors into a newly created subdivision, Rule 26(b)(2), for "ease of

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reference."³⁸ Finding courts did not employ the proportionality factors to limit discovery as robustly as anticipated, the Committee amended Rule 26(b)(1) in 2000 to add the line: "All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii)."³⁹ In 2006, the Committee moved the proportionality factors down in the rules again, this time to Rule 26(b)(2)(C), to make room for the newly created Rule 26(b)(2)(B) concerning information not reasonably accessible.⁴⁰ This drifting away of the proportionality factors from Rule 26(b)(1) may be one of the reasons courts and parties have not viewed the factors as an integral part of the scope of discovery.⁴¹ The return of the proportionality factors to Rule 26(b)(1) in the...