June 01, 2018 E-Discovery

Do the New Rules Lighten the Sisyphean Boulder?

William Hamilton | The author is executive director of the University of Florida Law E-Discovery Project.

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In the darkest days of the Second World War, the French-Algerian Nobel Prize–winning writer Albert Camus wrote the existential manifesto The Myth of Sisyphus. This work teaches us that the absurdity of life requires that we—like the tragic Greek mythological figure Sisyphus—keep pushing the proverbial boulder up the mountain even though we must fall near the top and the boulder will come tumbling down. Life condemns us to perpetual failure and absurdity.

E-Discovery

The struggles of litigators, reflected in the Federal Rules of Civil Procedure, to manage the transition from paper documents to electronically stored information, resemble Sisyphus’s perpetual labor.

The 2006 Federal Rules amendments introduced the concept of data “not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B). The hope behind the rule was to corral exponentially exploding electronic data by trying to take certain locations—legacy, backed-up, and data fragments—off our worry lists.

Unfortunately, this effort has stumbled as technology advances provided ever easier access to those “inaccessible” locations, undermining claims of undue burden and cost. The data mountain continued to grow (exponentially) and labors increased. The Sisyphean boulder became heavier and the uphill climb steeper. Then a second mountain of electronic discovery suddenly rose up: social media discovery.

Undeterred by the 2006 amendments’s limited success, the 2015 Federal Rule amendment attacked the mountain heights of growing data by declaring that discoverable information must be both proportional and relevant. Once again, the idea was to shrink the mountain, making the climb easier.

But just as the 2015 amendment went into effect, litigators found themselves confronted with new exponential accretions to the data mountain. Sensor data from the Internet of Things made the uphill trek increasingly slippery. Smartphones, automobiles, refrigerators—virtually everything now has embedded sensors constantly collecting, broadcasting, and receiving data.

A new experiment went into effect last year in the Northern District of Illinois and the District of Arizona. The Mandatory Initial Discovery Pilot Project does not attempt to shrink the data mountain, as previous rules amendments have attempted, or even tinker with Federal Rule of Civil Procedure 26(b) discovery obligations. Instead, it approaches the summit from another direction: increasing the mandatory disclosures of Rule 26(a)(1). The pilot project requires that a party disclose unfavorable information that the party does not intend to use in addition to information the party intends to use in the litigation. Rather than surmounting the mountain, each party is required to immediately mine its own data and disclose to the opposition relevant information—good or bad.

The pilot project thus accomplishes something truly radical: modification of the work-product doctrine to attain the goals of Federal Rule of Civil Procedure 1— “the just, speedy, and inexpensive determination of every action and proceeding.”

Litigators who have repeatedly shouldered the boulder up the discovery mountain may feel unappreciated. After all, we owe duties of diligence and confidentiality to our clients. Does the disclosure at the commencement of the case of unfavorable information that we will not be using threaten the attorney-client relationship and open the door to free riding? Am I now to carry the opposition up the mountain too? How am I to know what defenses the opposition may imagine, envision, or develop? Am I really required to produce, without a Rule 34 request, documents that may harm my client or that may suggest defenses or claims to the opposition? Doesn’t Hickman v. Talyor, 329 U.S. 495 (1947), preclude such requirements?

The pilot program proponents claim the change to Rule 26(a) is a modest reform. Unfavorable information is almost always discovered by competent counsel during the course of the litigation. The pilot program gets out the important information about the case sooner and at minimal cost. Discovery costs—and especially electronic discovery costs—now dominate the litigation landscape. The pilot program proponents believe that, with all the cards on the table, the parties can quickly and realistically assess their litigation prospects and focus on genuine merits disputes, rather than waiting months or years for discovery to bring them to the same position.

The e-discovery-driven rules amendments of the past 10 years—from the 2006 changes, to the 2015 changes, to the current pilot program—point to a new litigation model for the information age. The new “information container” has changed from paper to electronic binary digital files and requires a new discovery model that deemphasizes the traditional adversarial process when gathering case data.

Both inside and outside the pilot program, courts will increasingly focus on early data disclosure of relevant information—regardless of whether a party intends to use the data downstream in the litigation or not. Courts will likely pay less and less attention to atavistic attorney work-product assertions. The new model is “let the data tell the story,” or at least allow the litigators to go to work using advanced analytics to organize and understand the common case data and to persuade the trier of fact of their interpretation. The future will belong to those skilled in the technologies and resources necessary to build their client’s story from the data, not in restricting data access.

For litigators, if this means abandoning the Sisyphean boulder, I, for one, will not miss trudging up the mountain.

William Hamilton

The author is executive director of the University of Florida Law E-Discovery Project.