The amended Federal Rules of Civil Procedure (FRCP) took effect in December 2015. What effect did the amendments have on cases involving the discovery of electronically stored information (ESI)? The answer may be found in a recent study published by Kroll Ontrack, a data recovery and e-discovery consulting firm. The conclusions drawn can help you anticipate pretrial challenges and how courts might handle them.
Unearthing the main issues
Kroll’s study reviewed 57 significant state and federal cases and revealed four common ESI-related issues:
- Disputes over production, including methods of production, proportionality and scope of discovery (56% of the cases studied),
- Preservation, spoliation and options for sanctions (32%),
- Procedural concerns, such as search or predictive coding — also known as technology assisted review (TAR) — protocols (8%), and
- Cost considerations, including cost shifting and taxation of costs (4%).
The FRCP amendments emphasize both relevance and proportionality — and the study found that the 2016 court opinions focused on the same issues.
Digging deeper into the cases
The study came to some important conclusions. For example, it found that the opinions addressing proportionality demonstrate that the amendments haven’t changed the discovery burden. In other words, both the requesting and responding parties must explain why a discovery request should or shouldn’t be granted.
The opinions also reflect the greater attention paid to preservation practices under the amended FRCP 37. The cases considered 1) reasonable steps to preserve, 2) intent to deprive another party of relevant ESI, and 3) the inherent power of the court to impose sanctions. One case noted that the court had the power to grant sanctions even if FRCP 37 hadn’t applied.
Cases involving procedural issues largely dealt with search protocols and predictive coding. Although courts acknowledged that predictive coding is frequently the most effective and efficient search option, they refrained from requiring parties to use it. Instead, courts found that the responsible party is usually best positioned to determine how to search for and produce responsive ESI.
When courts addressed cost-centered issues, they seemed willing to require parties to pay for their own discovery in some circumstances. For example, the plaintiff in one case was given access to emails (at the plaintiff’s expense) where the defendant didn’t have its own archiving system.
Research shows that courts expect parties to collaborate early in a case to establish the scope of discovery, production formats and similar matters. Such collaboration could preempt many pretrial disputes over e-discovery.