In last month’s eDiscovery Blues, I wrote about how Information Governance can help legal teams prepare for the “Meet and Confer” conference set forth under the Federal Rules of Civil Procedure’s (FRCP) Rule 26(f).
This month, I’m going to talk some more about Rule 26, but this time we’ll look at Discovery Scope and Limits under section (b) and the benefit of leveraging technology sooner in the process.
Rule 26(b) Discovery Scope and Limits
FRCP Rule 26(b) lays down the basis for Discovery Scope and Limits, stating in paragraph 1, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case” (my emphasis in italics).
The Rules go on to lay out 6 considerations for determining proportionality:
- 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
- Whether the burden or expense of the proposed discovery outweighs its likely benefit
The rule also states that “information within this scope of discovery need not be admissible in evidence to be discoverable.”
Burdens of Persuasion
Rule 26 was amended in 2015 in ways that took into account the changing landscape of electronic data and the technology available for collecting and reviewing it.
Specifically regarding Electronically Stored Information (ESI), Rule 26(2)(B) states, “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.” However, “the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause” (my emphasis in italics).
In Max Kennerly’s excellent article, “A Plaintiff’s Guide To Fed.R.Civ.P. 26 Discovery Proportionality” he reminds us that even with the amendments, the burdens of persuasion remain unchanged, “with the requesting party bearing the burden of establishing relevance and the objecting party bearing the burden of establishing the discovery is improper.”
In other words, the requesting party only has to prove relevance, not proportionality. That burden falls on the objecting party, who must avoid broad, boilerplate objections, and specifically show how the proposed discovery is disproportionate.
Determining Scope with Live EDA
In the past, proving proportionality and relevance could be difficult without collecting large amounts of potentially irrelevant data and moving it further downstream to processing and review, which could put stress on deadlines, add data handoffs between stakeholders, and increase costs, which is highlighted in this month’s eDiscovery Blues cartoon accompanying this article.
By using Live Early Data Assessment (EDA) tools, organizations can gain insights into data where it lives, with the ability to quick search and analyze ESI across common cloud solutions like Microsoft Office, OneDrive, and Teams, Google Suite, Slack, SharePoint, as well as on-prem file shares and email systems. This early assessment can help parties quickly determine relevance and scope before collection, then promote the potentially relevant information for further review.
Chief Justice John Roberts, wrote specifically about scope when discussing the 2015 FRCP Amendments in his Year-End Report on the Federal Judiciary, stating: “lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need.”
Tools like Live EDA better the parties’ ability to eliminate unnecessary and wasteful discovery by giving them a careful and realistic assessment of actual need. It also gives opposing parties a more effective opportunity for cooperation, which Roberts states is the obligation of judges and lawyers in order to control “the expense and time demands of litigation—an obligation given effect in the [FRCP] amendments [which] highlight the point that lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes.”