Due to the sheer volume of information involved, conforming to a request for ESI discovery in civil litigation can be overwhelming. Understandably, each party involved in a case wants as much information as possible from the other to support their assertions. The result of this dynamic can produce a chaotic and costly environment for all involved.
But is this dynamic a foregone conclusion? What is each party required to produce to the other? How is the scope of eDiscovery arrived at?
Rule 26 of the Federal Rules of Civil Procedure and Its Relation to eDiscovery
The answers to these questions lie within the Federal Rules of Civil Procedure (FRCP).
Rule 26 of the Federal Rules of Civil Procedure (FRCP) governs the general provisions for discovery in civil litigation, including electronically stored information (ESI). The rule plays a critical role in eDiscovery by establishing guidelines for the disclosure, scope, and management of discoverable materials, ensuring efficiency and fairness in legal proceedings. Some key provisions of the FRCP are as follows:
- Under Rule 26(b), any party 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, 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
This rule addresses the discoverability of ESI that is not reasonably accessible due to undue burden or cost, allowing parties to object to its production. Courts can order discovery of such materials if the requesting party demonstrates good cause.
- Rule 26(a)(1) requires parties to make initial disclosures of potential discovery, including:
- All available contact information of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses.
- A copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.
- A computation of each category of damages claimed by the disclosing party unless privileged or protected from disclosure.
- Any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
- Rule 26(f) mandates that litigating parties confer to address the discovery requirements relevant to each case. Under Rule 26(f)(2), “the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.”
The attorneys handling the case share the responsibility of organizing the conference, making a good-faith effort to reach an agreement on the proposed discovery plan, and submitting a written report detailing the plan to the court within 14 days after the conference.
The Rule 26(f) conference serves as a crucial opportunity for parties to proactively address common discovery challenges and propose strategies to streamline the process while ensuring proportionality. Since discovery agreements are typically reciprocal, parties should avoid requesting terms they would be unwilling to provide. Attorneys should come to the conference well-prepared, informed, and ready to negotiate reasonable agreements for both sides in order to allow for an efficient discovery process that considers burdensome costs.
The meet-and-confer conference ensures that both sides agree on the scope and format of ESI production, including:
- The preservation of relevant ESI.
- The format of ESI production (e.g., native files, PDFs).
- Privilege issues, including potential privilege waivers or claw-back agreements.
- The scope, timing, and limitations of discovery.
- Potential disputes over ESI that is not reasonably accessible.
Rule 37 of the FRCP and Failure to Cooperate
Under Rule 37, parties to litigation are expected to take “reasonable steps” to preserve ESI. This rule makes the obligation to preserve information an affirmative duty for practitioners.
Rule 37(f) provides that “if a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure.”
Rule 30 of the FRCP and Discovery of Discovery
When there are reasonable doubts about the completeness and integrity of a producing party’s responses, it may result in “discovery of discovery.” The following are examples of topics that may initiate a discovery of discovery:
- Was a proper legal hold implemented timely and was it thorough in its case detail, instructions, and expected processes to ensure a proper collection of relevant material?
- What was ESI collected?
- How was ESI processed?
- Was ESI preserved from modification and/or destruction?
- Is production of ESI missing relevant materials that are otherwise known to exist?
When discovery-about-discovery becomes apparent, depositions are often used to arrive at information quickly and comprehensively using Rule FRCP 30(b)(6). This rule allows for a deposition to be served on an entity rather than an individual. The notice specifies the topics to be covered in the deposition, and the party being deposed is responsible for designating the person or persons qualified to respond. This allows for a full exploration of the salient topics in a single deposition.
Conclusion
In summary, the eDiscovery process in civil litigation is governed by a complex set of rules designed to ensure fairness, efficiency, and proportionality.
Rule 26 of the FRCP establishes the framework for discovery, outlining the scope of disclosure and emphasizing cooperation between parties. The Rule 26(f) conference provides a crucial opportunity for litigants to align on discovery expectations and mitigate potential disputes. Additionally, Rule 37 enforces compliance by addressing failures to preserve relevant ESI, while Rule 30 enables parties to scrutinize the adequacy of discovery efforts.
Understanding these rules and approaching discovery with a strategic, well-prepared mindset can help legal teams navigate the challenges of eDiscovery effectively while minimizing chaos and unnecessary burdens and costs.
