The amendments to the Federal Rules of Civil Procedure, which took effect on December 1, 2015, have been described as “ushering in the most significant changes to discovery and case management practices in more than a decade.” According to Chief Justice John Roberts, writing in his 2015 Year-End Report on the Federal Judiciary, “[t]he amendments may not look like a big deal at first glance, but they are.” The amendments are intended to expedite the litigation process and make discovery more efficient and cost-effective. They largely address navigating and managing the abundance of information and evidence available in a digital age. Although nine rules were amended, the amendments to Rules16 and 26—dealing with case management and adopting a proportionality standard for electronically stored information—have received the most attention. The amendment to Rule 1 may, however, have the most profound impact on the litigation process and on lawyers’ ethical obligations.
The 2015 Amendments in Broad Strokes
Rule 1 is the keystone to the Federal Rules of Civil Procedure. The amendment to Rule 1 lays the foundation for the 2015 amendments and provides a new context for lawyers to consider their ethical obligations. Rule 1 provides that the Federal Rules of Civil Procedure “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.” As Justice Roberts explained in his report, “[t]he underscored words make express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation—an obligation given effect in the amendments that follow.”
The emphasis among litigators and in the legal press has been on Rules 16 and 26, likely because those amendments most clearly affect procedural obligations and fundamentally shift the approach to discovery. For example, the amendments to Rule 16 emphasize early and active case management; in addition to shortening the time frames in which case management conferences occur, Rule 16(b)(1)(B) no longer permits parties to engage in scheduling conference by “telephone, mail, or other means.” In addition, amended Rule 16(b)(3)(B)(iii) expressly permits a scheduling order to “provide for disclosure, discovery, or preservation of electronically stored information. . . .” By requiring early and active case management and expanding the topics that may be addressed by a scheduling order, the amendments to Rule 16 were intended to foster just and speedy resolution by effectively beginning the disclosure and discovery processes sooner.
Similarly, amended Rule 26(b)(1) now limits the scope of discovery to what is “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.” The comments make clear that the parties share the responsibility of making the determination of proportionality. Read together with Rule 1, the proportionality requirement of Rule 26(b)(1) also requires the parties to consider expediency, efficiency, and justice.
Some commentators argue that the amendments simply caught the rules up to practices widely adopted in the legal profession; judges have imposed proportionality standards in making discovery determinations for years. However, the amendment to Rule 1 has placed a greater responsibility on the parties to cooperate and to use proportionality as a guiding principle for litigation strategy and discovery plans. According to the comments to the amended Rule 1, “[e]ffective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure.” (Emphasis added.) Indeed, the purpose of the amendment is “to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way.” (Emphasis added.)
Federal Rule 1 and Model Rule 1.1: Changing the Landscape of Legal Ethics
Rule 1.1 of the ABA Model Rules of Professional Conduct mandates that the attorneys provide competent representation. The rule specifically provides: “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” With the proliferation of technology, it is critical that attorneys consider the implications of technology in formulating litigation strategy and case management plans. This includes both the impact of technology on the nature and amount of available evidence and the use of technology in managing the litigation process. See ABA Commission on Ethics 20/20. Comment 6 to Model Rule 1.1 was amended in 2012 to clarify that to sustain the requisite knowledge and skill, a lawyer should keep abreast of how the benefits and risks associated with relevant technology affect the law and its practice. The commission, in promulgating the amendment, noted that “competent lawyers must have some awareness of basic features of technology.” The commission further explained that the amendment was “intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.”
A lawyer’s duty of competence under Model Rule 1.1 is necessarily implicated by the lawyer’s duties under Federal Rule of Civil Procedure 1. To ensure the just, speedy, and inexpensive determination of every action required by Rule 1, an attorney must provide competent representation, which requires a continuous assessment of the risks and benefits of technology. Thus, to satisfy Model Rule 1.1, a lawyer making a proportionality assessment under Federal Rule 26 must be able to competently consider the implications of technology and technological tools in achieving a “just, speedy, and inexpensive determination” in the matter.
The interplay between Federal Rule 1 and Model Rule 1.1 is best illustrated by a hypothetical. An old-school law firm, ABC Firm, represents an automobile parts manufacturer in its defense of a lawsuit alleging faulty brake design. Upon request from the plaintiffs’ counsel for any and all emails sent or received by the manufacturer’s officers, directors, employees, and agents related to brake design during the relevant period, ABC Firm requests the client collect all relevant emails. Client gathers and prints emails from current employees. Whether there are few emails produced (suggesting that the collection methodology was faulty and likely omitted relevant documents) or there are tens of thousands of pages of emails produced (which are cumbersome to produce and manage in hard copy), the use of technology to improve the just, speedy, and inexpensive determination of the action is obvious. Employing electronic search functionality likely would have saved significant time and yielded a more complete universe of relevant documents. In addition, electronic document production, as compared with paper, would have permitted significant efficiencies for attorneys and legal staff in the overall production, review, and management of the documents.
This hypothetical illustrates the problem for lawyers who do not keep abreast of technological advances that affect the creation of evidence as well as the technology that can be used in the legal process: The failure to stay apprised of developments in technology that may be used in the practice of law (or that are implicated in the practice of law by virtue of procedural requirements) constitutes a violation under the Model Rules of Professional Conduct. The same failures can possibly lead to sanctions under the Federal Rules of Civil Procedure for failure to comply with discovery and disclosure obligations.
Given the proliferation of technology, the consumption of information in our society, and the fundamental principles underlying a fair and impartial adversarial system of justice, courts are not going to sympathize with attorneys or clients who do not stay abreast of advances in technology. While the 2015 amendments to the Federal Rules of Civil Procedure reflect the sentiment that technology plays an invaluable role in today’s litigation (and a critical role in the events that give rise to litigation), the interplay between the Federal Rules of Civil Procedure and the Model Rules of Professional Conduct also reflect that same sentiment. Attorneys need not be specialists in all things tech, but they do need to assess and adapt to emerging technology to remain effective, efficient, and competent. This is apparent through the history of the profession—from the typewriter to the desktop computer, from the stacks to Westlaw, and from paper discovery to digital discovery. A lawyer’s competence with technology undoubtedly affects his or her ability to facilitate the “just, speedy, and inexpensive determination of every action” as required by the new Federal Rule of Civil Procedure 1.
Chris Skinner is a 2015 graduate of the Sandra Day O'Connor College of Law at Arizona State University and is licensed to practice in Arizona. Stephanie McCoy Loquvam is a litigation associate at Moyes Sellers & Hendricks in Phoenix, Arizona.