Electronic Discovery
| Publication year | 2017 |
Electronic Discovery
K. Alex Khoury
[Page 971]
At the end of 2015, the Federal Rules of Civil Procedure were amended to reform the discovery process with three main goals in mind: (1) promoting cooperation between the parties, (2) emphasizing proportionality in discovery, and (3) encouraging active case management by the courts. This Article will examine how the courts in the Eleventh Circuit interpreted and applied the new rules in 2016 and consider whether the new rules are having their desired effect on E-Discovery practice.1
Federal Rule of Civil Procedure l2 was amended to promote cooperation by expressly stating that "the parties" are responsible for employing the Rules to obtain just, speedy, and inexpensive results in litigation.3 Although the amendment did not create any new obligations on the parties, it was intended to encourage the parties to cooperate in furtherance of the goals of Rule 1. Attorneys versed in E-Discovery can attest to the tremendous savings in time and expense possible through cooperation, but if you asked ten attorneys to define "cooperation" in the context of E-Discovery, you would likely get ten different definitions. Rule 1 and its accompanying committee notes offer no guidance on how the parties are to cooperate.
The contours of E-Discovery cooperation may have been outlined by Chief Justice John Roberts in his 2015 Year-End Report on the Federal Judiciary when he wrote, "The test for plaintiffs' and defendants' counsel alike is whether they will affirmatively search out cooperative solutions,
[Page 972]
chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results."4 In 2016, federal courts began filling in details around Justice Roberts's outline, including several district courts in the Eleventh Circuit.
The United States District Court for the Middle District of Florida invoked Rule 1's implicit call for cooperation in Lanard Toys Ltd. v. Dolgencorp, LLC,5 stating:
Foremost, Rule 1 provides that the rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." The recent addition of "and the parties" places shared "responsibility to employ the rules in the same way." "Effective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure."6
The E-Discovery dispute in Lanard Toys arose, at least in part, because the parties failed to address E-Discovery concerns adequately in their Rule 26(f) 7 discovery plan. The parties' "plan" for discovery of electronically stored information (ESI) was to "work together in good faith to try to agree to a stipulated agreement regarding the disclosure and discovery of [ESI]."8 The court aptly described the parties' agreement to agree as "too simplistic and too optimistic."9
Predictably, no agreement was reached before the parties began discovery. In response to the plaintiff's discovery requests, the defendant collected and produced documents in the manner and format of its choosing without metadata.10 The plaintiff sought broader discovery, including the discovery of metadata, and moved the court to compel the defendant
[Page 973]
to agree to an ESI discovery plan or have plaintiff's proposed plan imposed on it.11 The court denied the plaintiff's motion. One fact the court weighed in the defendant's favor was its offer to produce the metadata for any document it had already produced "upon the plaintiff's request and explanation for need."12 The court's reasoning and ruling is an endorsement of Rule 1's call for a "cooperative and proportional use of procedure."13
Blake v. Batmasian14 was a Fair Labor Standards Act (FLSA)15 case that was derailed in discovery by the parties' and their counsels' "obvious mutual animus," which, the court noted, had "made the discovery process unnecessarily combative, excessively litigious, and wasteful of the Court's limited judicial resources."16 After having already conducted three 'lengthy discovery hearings" in the case, the court was forced to referee a dispute over the plaintiff's attempt to depose witnesses about alleged scandalous conduct by one of the defendants—allegations the court had already struck from the complaint as irrelevant to the case.17 The court denied the plaintiff's request for additional time to depose witnesses on topics immaterial to the FLSA claim, citing, among other things, Rule 26's18 proportionality requirement.19 The court also emphasized cooperation, reminding the parties that Rule 1 "makes crystal clear the obligation of judges—and lawyers—to cooperate and control the expense of litigation."20 The court warned the parties that it took the 2015 amendments to the Federal Rules of Civil Procedure seriously and expected them to do the same.21
In Freedman v. Suntrust Banks, Inc.,22 the court was explicit that it expects parties to share information about their electronic information
[Page 974]
systems early in cases to allow for efficient and economical discovery.23 The plaintiff in Freedman was seeking to certify a class of credit applicants with disabilities, claiming the class had been discriminated against by the defendant.24 The plaintiff sought discovery of loan files of potential class members but did not know the searching capabilities of the electronic information system the defendant used to store its loan files.25 The defendant objected to reviewing all of its loan files to identify potential class members, claiming the process would be unduly burdensome.26 The parties wasted several months of discovery while the plaintiff tried to figure out how to discover relevant information from the defendant's computers in a way that would be less burdensome for the defendant—apparently with little guidance from the defendant.27 Although the court chided the plaintiff for her general lack of diligence in moving the case along, it reluctantly granted her motion to extend the deadline for class certification to allow more time for discovery because it found she acted "energetically," albeit ineffectively, in seeking discovery from the defendant's electronic information system.28 The court encouraged parties to communicate earlier about E-Discovery and to get E-Discovery experts involved early if necessary to help parties learn about the capabilities of relevant electronic information systems.29 The court observed that "[a] Rule 30(b)(6) deposition should not be necessary to obtain straightforward information about a party's electronic information systems."30
As these cases demonstrate, courts will look for, consider, and weigh parties' efforts to cooperate when deciding discovery motions under the Federal Rules as amended in 2015. The amendment to Rule 1 may not have officially created new obligations for parties, but, urged on by Chief Justice Roberts, courts are increasingly looking to Rule 1 to guide them in untangling E-Discovery disputes.
One of the most talked about 2015 amendments was the overhaul of Rule 26(b)(1) to reemphasize the role of proportionality in discovery. By moving the proportionality factors from Rule 26(b)(2)(C) to Rule 26(b)(1), the Rules Committee did not change the scope of discovery so much as it
[Page 975]
renewed the courts' and practitioners' focus on the use of the factors to limit discovery. 31
An interesting, and perhaps unexpected, use of proportionality to limit discovery presented itself in In re: Takata Airbag Products Liability Litigation.32 In that case, the parties disagreed over how to handle the production of irrelevant, confidential information that was comingled with discoverable data. The producing party requested that it be allowed to redact confidential, irrelevant information from documents containing relevant data and that it be allowed to withhold irrelevant parent documents from responsive document families.33 The requesting party opposed the redactions, arguing that the parties had a confidentiality order in place to protect any commercially sensitive information contained in the documents and warned that allowing such redactions would lead to unnecessary litigation.34 Following the recommendation of the case's special master, the court allowed the producing party to redact confidential, irrelevant information and to withhold irrelevant parent documents.35 The court cited Rule 26(b)(1) proportionality and Chief Justice Roberts's Year-End Report36 for the proposition that "a party is not entitled to receive every piece of relevant information."37 "It is only logical, then," the court held, "that a party is similarly not entitled to receive every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld."38
The fallout from the Takata decision bears watching. The court's ruling appears to devalue the protection afforded parties by confidentiality agreements, and this decision could lay the foundation for an increase in discovery disputes over...
To continue reading
Request your trial