Electronic Discovery for the Rest of Us - The Rules

Chapter 2: Rule Changes

 The first formalized changes to the Federal Rules of Civil Procedure regarding eDiscovery were made in December of 2006. This was the culmination of a period of debate and review that started in March 2000 although discussions about the use of electronic documents in litigation had been underway long before that. As early as the late 1980s, U.S. Senate investigators in the Iran-Contra affair were able to retrieve 758 e-mail messages sent by Oliver North regarding his involvement in the operation. North had believed e-mail messages to be deleted but after the email recovery, he was convicted of lying under oath to a congressional committee.

Roughly ten years later, then Vice President Al Gore's fundraising activities were under investigation by the U.S. Department of Justice. White House Counsel Beth Norton eventually reported that it would take up to six months to search through 625 storage tapes of White House e-mail

In 1999, the American Bar Association adopted new Civil Discovery Standards, which included provisions addressing preservation duties and cost shifting in relation to e-discovery. Those standards were cited thereafter in a number of federal cases, most notably Judge Shira A. Scheindlin's discovery decisions in the matter popularly known as the Zubulake case. (Zubulake v. UBS Warburg, S.D.N.Y. 2003, 220 F.R.D. 212)

Throughout that case, the plaintiff claimed that the evidence needed to prove her claims existed in emails stored on UBS' own computer systems. Because the emails requested were either never found or destroyed, the court found that it was more likely that they existed than not. The court found that while the corporation's counsel directed that all potential discovery evidence, including emails, be preserved, the staff that the directive applied to did not follow through. This resulted in significant sanctions against UBS.

The actual rule changes that were introduced in 2006 included:

• Rule 34(a) created a new category of discoverable information - electronically stored information or 'ESI’ and gave the reviewing party the right to 'test or sample' electronically stored information as part of the initial production process
• Rule 34(b) permits a requesting party to specify the form for producing electronically stored information as part of the initial production process
• Rule 26(b)(2)(B) provides that electronically stored information need not be produced if the source is not reasonably accessible on account of either undue burden or undue cost. 
• Rule 26(f) was amended to include meet and confer requirements regarding ESI. These included specifically discussing with particularity any issues that are likely to arise and to develop a proposed discovery plan relating to disclosure of any ESI.
• Rule 37, sometimes referred to as the 'safe harbor' rule, provides that 'a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.’

These rule changes effectively forced civil litigants into a compliance mode with respect to their proper retention and management of electronically stored information (ESI). The risks that litigants then began to face because of improper management of ESI include spoliation of evidence, adverse inference, summary judgment, and sanctions. The best-known example is Qualcomm Inc., v. Broadcom Corp., 548 F.3d 1004 (Fed. Cir. 2008) where plaintiffs were sanctioned $8.5 million for what the Court called “monumental” discovery violations in their conduct in the discovery and trial of the matter. In addition, six attorneys were reported to their state bar association. They were eventually found blameless by the Court but not until two years later.[1]

After the FRCP amendments, many states also changed their rules to follow and, in some cases, mirror the FRCP changes. At the time of this writing, over 2/3 of the states had established such a rule. Coast-to-coast, from California to Florida and from states as populous as New Jersey to mostly rural states such as Louisiana and Alabama, e-Discovery is now a local issue.

The most up to date information on state rules can be found in a list compiled by Thomas Y. Allman, former Senior Vice President, General Counsel and Chief Compliance Officer of BASF Corporation and later Senior Counsel to Mayer, Brown, Rowe & Maw, LLP. He was an early advocate of amendments to the Federal Rules of Civil Procedure to achieve e-discovery reform and a leader in the formulation of the Sedona Principles.[2] The Sedona Conference has also published an overview of state discovery law. [3]

More recently even criminal matters have been affected. In 2012, the Department of Justice/Administrative Office Joint Working Group on Electronic Technology (JETWG) developed a recommended ESI protocol for use in federal criminal cases. [4] Since then, attention to ESI has continued to grow and even bleed down to state and local criminal matters. [5]

In addition to formal court rules, many states are also pushing technical competence as an ethical requirement. From the well-known California Bar Opinion, “9 Things Every Attorney Needs to Know About Ediscovery" [6] to the Florida CLE requirement for technical training [7] basic technical competence in technical issues is now the rule in 38 states. Keep an eye on Bob Ambrogi's Law Sites blog for the latest on this issue. [8]

At roughly the same time, the Electronic Discovery Reference Model (EDRM) was started to deliver leadership, standards, best practices, tools, guides, and test data sets to improve electronic discovery workflow processes. The original EDRM project (it has changed hands twice over the past several years and is now owned by consultants Mary Mack and Kaylee Walstead: www.edrm.net ) came up with the following chart to show a general work flow for eDiscovery projects.

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More recently, the multiplicity of data in electronic formats and the increase in digital activity by people in all areas of their lives has led to more confusion regarding ESI and retention standards. According to Georgetown Law, 88% of the US population uses the Internet every day and 91% of the adults use social media regularly [9] and given that more than 90 percent of all documents created today are generated in electronic format, we have seen an enormous rise in ESI in all case types.

Examples of the types of data now included in e-discovery are not just documents but e-mail, databases, web sites, instant messaging, blogs, chat room recording, even audio and video recordings. In fact, any stored information that could be relevant evidence now needs to be reserved.

One result of the rapid growth in not just volume but types of data was a second round of amendments to the FRCP. Passed in 2015, these amendments include:

• FRCP 1 was amended to require the court and the parties (new wording) to construe, administer, and employ (new wording) the rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.”. The basis of the changes is to ensure that parties share with the court the responsibility to apply the rules properly. The term “cooperation” appears in the advisory notes[10] and not the rule itself but the notes specifically discuss cooperation as a mandated alternative to the “over-use, misuse, and abuse of procedural tools.” (the process of cooperation in litigation will be discussed more in Section 5 below.)

• Rule 26(b)(1) changes the older language on proportionality ("Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.") to state that parties may obtain discovery regarding non-privileged matters relevant to any party's claim or defense "and 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." 
• Rule 37(e) withdraws the earlier "safe harbor" provision with wording that if ESI that should have been preserved in anticipation of litigation is lost because a party failed to take "reasonable steps" towards its preservation, and it cannot be restored or replaced through other discovery, the court can enter Rule 37 sanctions, even without a finding of prejudice.

[1] https://www.ediscoverylaw.com/2010/04/court-declines-to-impose-sanctions-against-qualcomm-attorneys-absent-evidence-of-bad-faith/

[2]http://www.lfcj.com/uploads/1/1/2/0/112061707/2018proportionality_today_june_by_ty_allman.pdf, at p 18

[3]https://thesedonaconference.org/node/2046

Recommendations for Electronically Stored Information Discovery Production in Federal Criminal Cases. https://www.fd.org/sites/default/files/Litigation%20Support/final-esi-protocol.pdf

[5] Social Media Evidence in Criminal Proceedings: An Uncertain Frontier from Georgetown Law at https://www.crowell.com/files/Social-Media-Evidence-in­Criminal-Proceedings-An-Uncertain-Frontier.pdf)

[6] http://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/CAL%202015-193%20%5B11-0004%5D%20(06-30-15)%20-%20FINAL1.pdf

[7] https://www.floridabar.org/member/cle/cler-faq/

[8] https://www.lawsitesblog.com/tech-competence

[9] See Social Media Evidence in Criminal Proceedings: An Uncertain Frontier from Georgetown Law at https://www.crowell.com/files/Social-Media-Evidence-in­Criminal-Proceedings-An-Uncertain-Frontier.pdf)

[10] The advisory notes are essential to understanding the 2015 Amendments as many of the notesexplain how the rules work in practice. Additionally, courts have, more and more, relied on the advisory notes in making rulings. A Comprehensive Overview: 2015 Amendments to the Federal Rules of Civil Procedure, Amii N. Castle https://kuscholarworks.ku.edu/bitstream/handle/1808/25513/5-Castle%2Bchart_Final.pdf?sequence=1&isAllowed=y