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E-Discovery: Cooperation and proportionality, the past, present and future

The Sedona Conference created a roadmap for managing the scope of cooperation and discovery

Cooperation and proportionality have been explicitly or implicitly required by the Federal Rules of Civil Procedure (FRCP) for decades yet have been conspicuously missing from practice. Despite the fact that discovery was intended to be managed by the parties, judicial, instead of party, management of discovery, has become the norm and voluntary party cooperation often the exception. A variety of factors, including decreased corporate legal budgets, an overburdened Judiciary and federal budget sequestration, are turning the tide toward an increased focus on ways to encourage proportionality and force litigants to cooperate in the implementation and execution of discovery in federal civil litigation. For example, courts have increased their enforcement of existing rules and enacted local rules designed to encourage cooperation and proportionality. Academic publications and seminars, likewise, offer guidance on discovery practices designed to decrease the cost of litigation. More recently, Congress has promulgated proposed amendments to the FRCP that would put further limits on discovery. The nirvana state where a fair result can be litigated at a fair price may remain elusive, but in some courts, such as the Northern District of California, dreams are turning into action.

For nearly 75 years, the guiding purpose of the FRCP as stated in Rule 1 has been “that they should be construed to secure the just, speedy, and inexpensive determination of every action and proceeding.” While applicable to civil procedure generally, and not focused specifically on electronic discovery, Rule 1 was intended to encourage open discovery between the parties to prevent surprise at trial. Fast forward from 1938 to 1993, the words “and administered” were added to the second sentence of Rule 1 (“that they should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”) in recognition of the court’s and attorneys’, as officers of the court, duty to ensure litigation is resolved fairly without undue cost or delay.

However, it has not been without limits. Starting in 1970, courts were empowered to limit the scope of discovery. Rule 26(b)(1) was modified to include the restriction that “All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).” Rule 26(b)(2)(C) in turn provides that “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”  A requesting party, on good cause shown, may still receive court ordered discovery from ESI sources proved inaccessible by a producing party on a motion to compel or protective order. However, the proportionality limitations of Rule 26(b)(2)(C) still apply and “[t]he court may specify conditions for the discovery”.

Despite the new limits implemented in 1970, the costs and burdens of discovery continued.  Yet, the 1980 Amendments to Rule 26 were not as sweeping because the Advisory Committee believed that discovery abuses could be managed on a case-by-case basis. This belief, however, was short-lived. In 1983, in light of the dramatic increase in the overuse of discovery and evasive responses to reasonable requests, contrary to the spirit of the rules as set forth in Rule1, Rule 26 was amended to mandate courts to, sua sponte or on motion, limit “the frequency or extent of” otherwise allowable discovery in certain instances.  More specifically, as a result of these amendments, courts were now required to conduct a proportionality analysis and consider if (1) the requested discovery is duplicative or obtainable from a source that is cheaper and less burdensome; (2) the requesting party had enough time to obtain the requested discovery; or (3) the burden or expense of the requested discovery exceeds its benefit in light of case needs, amount at stake, party resources, importance of issues, and importance of the discovery to those issues.

Although the amendments if enacted would certainly have an impact on cooperation and proportionality, certain judicial districts have already implemented their own rules of cooperation and proportionality. Effective Nov. 27, 2012, the Northern District of California issued a revised standing order detailing the information required in all joint case management statements. The revised Order expressly requires cooperation by the parties and proportionate discovery and incorporates ESI Guidelines and an ESI Checklist to illustrate what is expected and how to comply. These new rules also included a Model Stipulated Order for the discovery of ESI in a federal civil case.

Under the revised standing order for all judges of the Northern District of California, parties must now certify in the Joint Case Management Statement that they have reviewed the Northern District’s ESI Guidelines and discussed ESI-related discovery issues as part of the Rule 26(f) conference. To facilitate the meet-and-confer process, the Northern District strongly encourages parties to use the ESI checklist, which covers such issues as document preservation, search parameters and format of production. Parties are further encouraged, should they decide to enter into a stipulated e-discovery order, to use the Model Stipulated Order also provided by the court.

Contributing Author

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Terry Ahearn

Terry Ahearn is a partner at international law firm McDermott Will & Emery LLP.

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Contributing Author

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Wendy Axelrod

Wendy Axelrod is a senior discovery consultant and attorney at international law firm McDermott Will & Emery LLP.

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