I was listening to a speech about the upcoming changes to the Federal Rules of Civil Procedure, and the speaker relayed some research suggesting that something like 87% of the federal judiciary are reactive instead of proactive when it comes to ediscovery; they do little to nothing until the parties bring a discovery dispute before them. The idea was that increased judicial activity could help manage the cost and scope of discovery. The speaker encouraged the audience to get judges more engaged in ediscovery early in the case, but he didn’t elaborate on how to follow his suggestion. I think it is worthwhile to consider some ways to engage the judiciary before a discovery dispute arises, but more importantly, I think it is worthwhile to consider whether such engagement is a good idea.
The Report to the Chief Justice of the United States on the 2010 Conference on Civil Litigation stresses that the drafters of the Federal Rules amendments wanted much more active judicial intervention in handling discovery. No doubt this is in part because a few minutes of early judicial intervention could save days of later briefing, posturing, and formal hearing time. The participants in the rulemaking process suggested judges be available for prompt resolution of pretrial disputes, notably by making the Rule 16 conference a meaningful and detailed discussion to address tailoring discovery around the needs of the individual case, by requiring a conference with the court prior to moving for an order related to discovery, and by including agreements under FRE 502 in the scheduling order.
While Rule 16 is being revised to address those issues, they all assume the courts will become more proactively involved, which I don’t think can be taken as a given. Assuming that we want increased and early judicial intervention, what steps can the parties take to be more proactive and prompt more judicial proactivity?
Under both Rules 16 and 26, the parties can attempt to negotiate appropriate limits on document collection (for example, the parties may agree on many areas that affect the document discovery in any case - what key words to be used to limit the total number of documents to be reviewed; which potential document storage locations should be searched; which custodians should be collected first; what specific time frame is relevant to collection, etc.), and if that negotiation is unsuccessful, the parties can present the issues for the judge to determine at the Rule 16 conference.
The parties can also request changes to the ways in which the court resolves discovery disputes. For example, while the new rules will require a conference prior to filing a motion, the parties could ask that discovery conferences be held telephonically. The parties could request that the court allow/require letter briefs of no more than 3 pages, excluding attachments. The parties could agree to ask for expedited rulings on discovery disputes. The parties could also ask for the appointment of a special master for discovery or a referral of all discovery disputes to the magistrate.
The parties can also take a page from the Seventh Circuit Electronic Discovery Pilot Program and agree to or request that an ediscovery liaison be designated by all parties. This liaison, who can be an attorney (in-house or outside counsel), a third party consultant, or an employee of the party, must do four things:
- be prepared to participate in all ediscovery disputes and the resolution of any such disputes;
- be knowledgeable about the ediscovery efforts of the represented party;
- be familiar with the electronic systems and capabilities of the represented party and be able to explain and answer questions about those systems; and
- be knowledgeable about the technical aspects of ediscovery, including storage, organization, format issues, and search methodology.
It should go without saying that such a liaison should also be familiar with the current state of the ediscovery market, including improved technology across the EDRM spectrum and current competitive pricing. Judge Facciola explained, when asked about his advice on the new Federal Rules amendments, the considerable cost in loss of reputation a failure to be informed can entail when one does not have such knowledge.
The steps detailed above are all steps parties could take, and in many cases do take. The bigger, unanswered question is do these steps lead to the preferable outcome, and should counsel engage in these behaviors.