10/14/2015
Federal Judges Undergo Preservation Workshop at EDiscovery Conference
Federal Judges Undergo Preservation Workshop at
EDiscovery Conference
The first panel of the EDI and FJC conference focused on the upcoming FRCP changes,
particularly proportionality.
Zach Warren, Legaltech News
October 14, 2015
Barring a push from Congress, amendments to the Federal Rules of Civil Procedure (FRCP)
are coming on Dec. 1. While these changes represent a new challenge for attorneys, it also
commands the attention of perhaps the most important class of people they work with on a
daily basis—the judges they work with.
That's why, on Oct. 14, 50 federal judges from across the United States met in New Orleans to
discuss proportionality, scope, cost and reasonableness—the changing keys to ediscovery
in U.S. courts. The one day conference was jointly hosted by the Electronic Discovery Institute
(EDI) and the Federal Judicial Center (FJC). The first session, entitled "A Dialogue of Cost and
Proportionality," focused on some of the most important changes to the FRCP, centered on
Rule 26(b).
The panel, moderated by Wayne Matus, managing director at UBS, featured Steven Gensler,
associate dean of research and scholarship at the University of Oklahoma College of Law;
Judge Elizabeth Laporte, magistrate judge in U.S. District Court for the Northern District of
California; Glenn Melcher, special counsel for ediscovery at the Consumer Financial Protection
Bureau; Jonathan Redgrave, partner at Redgrave; and Judge Lee Rosenthal, district judge for
the U.S. District Court in the Southern District of Texas.
Throughout the closeddoor,one hoursession, a common theme emerged from the panelists:
cooperation. Ultimately, the new FRCP changes are meant to emphasize certain points, not
substantially change the preexisting rules. With that in mind, though, the panel said that new
changes in Rules 16 and 26(b) should urge the two parties—as well as judges—to work in
concert towards more amiable reconciliation of discovery issues. By taking the Rule changes as
a whole, one panelist said, a clearer picture should emerge for both judges and attorneys about
what discovery "proportional to the needs of the case" actually means.
To begin the panel, Gensler and Judge Rosenthal led the assembled judges through the new
changes, including additions in Rule 1, 16, 26(b), 26(c), and 34, as well as deletions in 26(b).
Emphasis was made on Rule 26(b) in particular, in the six factors that judges and the parties need to
use to determine whether proposed discovery is "proportional to the needs of the case." Five of these
factors, the panel said, are common: importance of issues at stake; the amount in controversy; parties'
resources; the importance of discovery; and whether the burden or expense outweighs its likely benefit.
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10/14/2015
Federal Judges Undergo Preservation Workshop at EDiscovery Conference
One factor, though, was included for the ediscovery age: relative access to relevant information.
One panelist said that often, courts will see one side purport to want everything, while the other
side says that the first side is being too burdensome. The panel had three key pieces of advice
for the judges in the audience on this: First, the new Rules help judges in being able to force
the parties to provide reasons for their discovery requests. The six factors now found in Rule 26
should help provide a road map for the parties, leading to a solution that is as amicable as
possible to all.
Similarly, the panel emphasized that requests asserting that certain discovery may lead to
relevant information should not be tolerated under the new Rules. With the road map now in
place, judges have a codified reason to deny this sort of request. Even though, generally, the
party requesting discovery is the party that judges should expect to be better versed in the
available data, the panel said, that does not mean that they should receive carte blanche and
attempt to discover everything.
Finally, in this sort of dispute, the new Rules (particularly Rule 16) encourage "live"
conferences, and the panel said that these face to face meetings can be key in establishing
preservation guidelines. While these meetings have existed as long as there has been law, the
panel emphasized that attorneys well versed in the new Rules should understand that a certain
amount of preparation is now expected for these meetings. Attorneys who enter meetings with
judges without knowing how much or what data their side actually holds, or that attempt to
assert a large number of boilerplate preservation requirements, will risk not having their
requests granted from the beginning.
Fee shifting through Rule 26(c) is a concept that is certain to receive a lot of attention come
Dec. 1, but the panel stressed that in actuality, what was already implicit is only becoming
explicit, with very few changes to the actual law. Indeed, the panel pointed out that the only
substantive change to Rule 26(c) is to include the "allocation of expenses" in the terms that
may be included in a protective order, something that many judges already contemplate.
However, the panel also said that the change does not make fee shifting in this way any more
likely than it was previously, and Advisory Committee for the Rules changes did not intend for
judges to take fee shifting more into account than previously.
All in all, the panel said, the new Rules should ultimately promote cooperation between the
parties and judges when it comes to preservation—as long as the attorneys are conversant in
the Rules, and as long as the judges hold the parties to that responsibility. One panelist noted
that if those conditions are followed, the Rule 26(b) roadmap should ultimately make judges'
lives easier, as well keep costs and the discovery burden down for those who provide a
legitimate reason to have the burden reduced. However, ultimately, how the Rules are applied
in practice—as well as in the courts of the judges in attendance—
remains to be seen post Dec.1.
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