March 01, 2016

Reinventing Discovery under the New Federal Rules

The rules change regularly, but this time the changes represent a paradigm shift.

Kenneth R. Berman

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They did it again. Only this time, it’s a whole new ballgame. Just as we were mastering our craft under the last iteration of the Federal Rules of Civil Procedure, they changed them. This happens. In the past 25 years, the Federal Rules have gone through five substantive revisions.

We all need to play by the rules, but what are we to do when the rules keep changing? Simply understanding how the new ones differ from those we already know might be sufficient when the revisions only nibble around the edges, sandpaper out rough spots, or make some technical adjustments.

But these new rules are a paradigm shift. If the December 2015 revision to the Federal Rules could be compared to football regulations, it’s as if the field shrunk to 70 yards, the downs per possession were lowered to three, and fumbles resulted in automatic do-overs.

Of course, the object remains the same, as does the essential nature of the process. We still get to offer evidence, make motions and arguments, and try to persuade judges or juries to rule in our favor. But in discovery—when we collect evidence, refine settlement calculations, posture the case for mediation, alter the parties’ risk tolerance, and typically bring the case to an end—the new rules are a game changer.

Intentionally so. The driver behind them was a well-organized push to change discovery in a big way, largely by narrowing its scope and downsizing the consequences for losing evidence, all ostensibly to make litigation faster and cheaper.

Because discovery is essential to the outcome and soaks up so much time and money, we do our clients no service by treating these new rules as a mere tweak. We need to take command of them and make them work to our advantage. We need to make sure we still get the evidence we need while neutralizing our opponents if they want to fight over evidence they don’t need. To do this, we need to make our own paradigm shift in how we litigate.

So how do we strengthen our discovery playbook to make these changes work to our advantage? Let’s first look at these changes in the context of the history that produced them. The discovery rules have always had bright lines and fuzzy ones. The bright lines are easy to navigate. They spell out things like how many interrogatories you can ask, when you can serve a document request, or what topics you must address in your automatic disclosures. The fuzzy ones generate the quarrels, largely boundary disputes over what must be disclosed or produced.

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