The New Federal Procedural Rules on Electronic Discovery: Writing Technology Into the Litigation Process
By Adam I. Cohen
The new millennium has witnessed a plethora of judicial opinions and regulatory actions severely sanctioning sophisticated corporations and their prestigious law firms for botching electronic discovery, and the carnage does not appear to be on the decline. Moreover, as the proverbial “tip of the iceberg,” these high-profile punishments do not reveal the cases where the handling of e-discovery helped determine the outcome in other ways. Although front-page news about e-discovery roadkill has been spreading a vague awareness as to the importance of e-discovery among litigators and their clients, the extent to which this recognition is accompanied by an understanding of what to do about it is questionable. Litigators, who choose not to arm themselves with such understanding personally or resort to tech-savvy colleagues, will find themselves rudely awakened by the changes to the Federal Rules of Civil Procedure projected to take effect in December 2006. These new rules elevate electronic discovery to the forefront of the litigation process in federal court, and will require federal court litigators to deal with technical, computer-related issues in a way that their law school instruction probably did not prepare them for.
Mandatory Early Discussion of Electronic Discovery Issues
Some of the best supporting examples for this proposition come from the least controversial, but most revolutionary, of the rules changes in terms of practical impact on the practice of litigation in federal court: the related changes to Rules 16 and 26(f). The new rules require that as part of the parties’ initial “meet and confer” to plan discovery, they must specifically address electronic discovery issues—including, for example, what steps they and their clients will employ to preserve dynamic electronic information and what format they will utilize for electronic production. The Rules Committee suggests that the precise subissues addressed will “depend on the nature and extent of the contemplated discovery and of the parties’ information systems.” Accordingly, it will be “important for counsel to become familiar with those systems before the conference.”
This comment is reminiscent of Judge Scheindlin’s exhortation that counsel must become familiar with their client’s “data retention architecture.” How many lawyers went into law school expecting that they would be required to have cozy familiarity with such intimidating-sounding aspects of computer information technology? Indeed, one might go so far as to say that for many lawyers, the avoidance of such matters led them to law school.
For their part, judges are invited to consider incorporating provisions for electronic discovery into their initial scheduling orders. In other words, your initial conference with your adversary at which you discuss and agree or disagree on a broad range of key electronic discovery issues assumes critical importance, as it will define the obligations your client will have to live by in implementing the notoriously expensive process of e-discovery. Woe to the lawyer who wades into such a conference with an incomplete or erroneous understanding of how the resolution of computer technology issues will affect the client. A court order setting into stone the results of an ill-conceived meet and confer position could prove extremely expensive to your client in terms of fees and expenses, to say nothing of how it might substantively impact the outcome of the case.
New Rules on Top of Changing Technology
Other changes in the rules write computer technology into the bedrock procedures of discovery in significant ways. (Remember, we are talking about the Federal Rules of Civil Procedure here, not some cases that are “nice to know” but can be “distinguished” by skilled advocates or that come up only sometimes.) For example, Rule 26(b)(2) establishes a procedure whereby parties need not provide electronic discovery from sources identified as “not reasonably accessible” (for burden or cost reasons) unless the requesting party makes a showing of good cause. Just think of the technical expertise required to deal with this rule—in identifying each potential source of electronically stored information within the menagerie of electronic media and systems in any modern business enterprise, in determining the requirements of procedures to access those sources, in assessing the burden or cost of such access, and in explaining the foregoing with enough specificity, but at the same time with sufficient clarity, to satisfy a judge who probably lacks IT expertise. Given that, as a gross understatement, computer storage, search, and retrieval technology is changing rapidly—what today we may consider not reasonably accessible may prove easily accessible tomorrow. Therefore, at a minimum, we should expect to see the development of a rich jurisprudence of “reasonable accessibility” as parties litigate over what this phrase means in particular contexts.
Other significant changes in the rules provide additional examples of how the new rules write computer technology into the law in ways that will require litigators to have greater resort to technical expertise as a routine part of litigating in federal court. Amendments to Rule 34 set forth procedures governing the format of production of electronically stored information. These rules establish as a default standard production in “a form or forms in which [electronically stored information] is ordinarily maintained or in a form or forms that are reasonably usable.” Getting into the particulars of the pros and cons of making electronic productions in particular file formats requires venturing into relatively highly technical territory for lawyers. The rule does not address some of the elephants in the room that case law will have to flesh out—for example, under what circumstances must a party produce metadata? Under what circumstances should a party have to produce documents in native file format? As with the “two-tier” approach described in Rule 26(b) (2), the format rule uses the R word, requiring production in “reasonably usable” format. Again, as computer technology advances and such advances dictate new standards of “reasonable usability,” we can expect to see parallel litigation activity and development in the jurisprudence of what is “reasonably usable.”
Finally, consider the highly qualified “safe harbor” of Rule 37’s protection from (at least certain) sanctions for spoliation where electronically stored information is lost through “routine, good-faith operation” of computer systems (at least where “exceptional circumstances” are absent). Identifying the manner of operating a computer system treated as routine and in good faith, particularly in the context of a duty to preserve, will likely change with advances in computer technology. When we perfect the magical big red “litigation hold” button that some courts seem to think has already been invented, the tolerance for any loss of data may disappear. In any event, lawyers will need to understand, argue, and explain what constitutes “routine, good-faith operation” of a particular computer system in the context of a particular preservation duty; and they will have to do so in a way that laypeople can grasp. Undoubtedly, we will see a new line of cases interpreting the rather dangerous-looking safe harbor.
The good news: “e-discovery challenged” litigators still have time to educate themselves or at least identify the right intellectual resources to add to their arsenal in marching to victory in the new age of electronic discovery. As litigators head to federal court after December 1, 2006, they will find a new aura of respect for the role of electronically stored information in litigation. Repent, Luddites, for your day of e-reckoning is upon you.Adam Cohen is a senior managing director with the electronic evidence group at FTI Consulting, Inc. Before joining FTI, Mr. Cohen was a litigation partner at Weil, Gotshal & Manges LLP. He is the coauthor (with Weil partner David J. Lender) of the annually updated treatise Electronic Discovery: Law and Practice (Aspen Publishers) cited in three of the Zubulake opinions.