Arguably one of the most prohibitive, complicated and expensive processes in litigation, discovery has seen related constraints balloon considerably over the past decade. A 2012 study suggests that discovery costs frequently make up around 20 percent of total costs associated with cases, second only to trial in billable hours. Add to that the exponential reduction of cost and increased access to data storage, the increase of data produced by the average law office and the fear of sanctions resulting from the destruction of potential evidence, and you’ve got a recipe for a legal disaster.
The reason why there has been such a tremendous surge in cost and complications is obvious, according to John Tredennick, founder and CEO of Catalyst, an e-discovery software provider. “It was only as we tipped the clock over into this millennium and entered the digital age that it became a big issue. The reason, plain and simple, is that the volume of digital content just exploded, leaving paper as the veritable ‘drop in the bucket,’” Tredennick explains.
In April 2013, the Federal Rules of Civil Procedure (FRCP) went under review by the Civil Rules Advisory Committee, which met at the University of Oklahoma to discuss the state of civil procedure and determine what changes could be made to answer concerns about cost and delay in civil litigation, many of which revolved around current discovery processes.
Rules were meant to be amended
As of now, it's unclear how these changes will affect the way the litigation process works. Rule changes are not scheduled to go into effect until December 2015, and even then, case law examples mapping the new normal could be years off. But that doesn't mean legal teams can't start defining what these changes could imply, educating themselves to quickly pivot when the need arises.
The good news is that for the most part, the rule changes attempt to reduce the costs associated with litigation and foster cooperation to the extent possible between courtroom opponents. This is neatly summed up in changes to Rule 1, which now states all rules in the FRCP “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.”
“Essentially there are 13 rules that have changes, some of them are minor, some major, and basically the changes have two goals in mind,” says Dave Canfield, senior managing director of client solutions at UnitedLex, a consulting firm with experience solving matter management issues. “One is to speed up the whole process, and what they’re trying to push for is early and active judicial case management and an increased level of cooperation between parties; and the second part of that is to reduce the overall cost of litigation through the concept of proportionality.”
That concept of proportionality has been among the most controversial of the FRCP rule changes. Previous attempts to limit the cost of discovery were made in 1983, but did little to stem the costs of excessive discovery, which has become commonplace in the 21st century courtroom.
“When it costs more to resolve the dispute than you could ever hope to win, something is seriously wrong,” Tredennick says.
Reduction of cost in the context of proportionality is something the committee took strides to prevent in the changes to the rules, addressing the subtext of Rule 26 to allow for more reasonable discovery requests. That rule has now been changed to include only the information that relates directly to the case at hand.
“One of the most important statements about discovery was that you were not limited just to discovering relevant or admissible evidence, but rather the phrase was intentionally broader to say ‘relevant to the subject matter of the litigation’ not just relevant to the trial,” says Tredennick.
In addition to limiting the scope of discovery, care has been taken to address concerns about preservation of data. Obviously the threat of sanction for the destruction of relevant materials has been a concern of any frequently defending entity, but under proposed changes to Rule 37 of the FRCP, more considerations need to be made.
Managing your e-discovery process
Proposed changes to the FRCP bring some challenges and some possibilities to corporate legal teams, but a plethora of technological tools to manage the surge of digital data and new requirements are at the ready. Evaluating technology options, in conjunction with strategies and organizational structures that support e-discovery efforts, will better prepare legal teams for the implementation of new rules as well as unavoidable litigation.
“It's going to become even more critical that counsel is knowledgeable about the capabilities of information technology and electronically stored information,” says Rhonda Ferguson, vice president, corporate secretary and chief ethics officer at FirstEnergy Corp. “There are a lot of different aspects of that, the source's access methods, collection practices etc. We actually have a records and information compliance department which is separate and distinct from our legal and information technology group,” she explains. “Those three departments work in tandem together for our e-discovery needs, but ultimately legal is responsible.”
As far as technology is concerned, software solutions that allow for technology assisted review, predictive analysis and so-called Big Data frequently pop up when discussing e-discovery solutions. And while some solutions do truly offer cutting-edge techniques, it's important not to get caught up in hype and marketing, says Howard Reissner, CEO of e-discovery software provider Planet Data.
“Law was practiced the same way in terms of technology for the last 250 years, and the last 10 years you see a staggering change. So you have more tools that are melded into the data management and searching and processing equation, and that's hopefully an ongoing scenario,” Reissner says.
In addition to the ongoing evolution of e-discovery options, Reissner says that the continually diversifying modes of data, like tweets, instant messages and text messages plus the increased volume each user creates, means infinitely more information for legal firms to sift through in the e-discovery process. However, that information doesn't necessarily provide the type, quality or volume of information needed to make the statistics-based presumptions Big Data can offer. “Big Data and a lot of data are two separate things,” Reissner says.
In addition to technology, legal teams need to engage early and frequently with their opponents to spur cooperation and build relationships that make for more civilized procedure. As with most of the problems in the courtroom, there is no silver bullet in dealing with discovery.
“One of the big caveats I constantly put out there to clients is that there's no magic box. There's not a piece of hardware or software that you can put in place that's going to solve these issues. It truly is a combination of people with the right knowledge, skills, training and the right methodology,” says Canfield.
Regardless of what happens once the amended rules go into effect, legal teams will need to continue to build their strategies to proactively account for not only the possibility of procedure change, but to be flexible in the face of growing and divergent volumes of information.