New Changes In Federal Rules of Civil Procedure (FRCP)

Within the realm of eDiscovery, the Federal Rules of Civil Procedure (FRCP) become important to understand and follow. Numerous court judgments have been seen in recent times, where Judges have levied heavy fines and penalties upon parties who did not abide by these rules.

Several Rules have been amended as part of the changes effective today, with the changes ranging from promotion of cooperation (Rule 1) and proportionality (Rule 26(b)(1)) to failure to preserve electronically stored information (Rule 37(e)) .  Here is a list of key Rules changed:

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• Rule 1. Scope and Purpose
• Rule 4. Summons
• Rule 16. Pretrial Conferences; Scheduling; Management
• Rule 26. Duty to Disclose; General Provisions Governing Discovery
• Rule 30. Depositions by Oral Examination
• Rule 31. Depositions by Written Questions
• Rule 33. Interrogatories to Parties
• Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
• Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

Noteworthy changes are in Rule 26:

Rule 26. Duty to Disclose; General Provisions Governing Discovery

(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non privileged 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.

(2) Limitations on Frequency and Extent.

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

(c) Protective Orders. (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending —

or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(d) Timing and Sequence of Discovery.

(2) Early Rule 34 Requests.

(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: (i) to that party by any other party, and (ii) by that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

(3) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and

witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery.

(f) Conference of the Parties; Planning for Discovery.

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;

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Avoiding the Seven Pitfalls of Legacy eDiscovery Platforms

The litigation discovery process has never been as costly, complex and critical as it is today. The sheer volume of electronic data to be culled and analyzed for each and every discovery production has grown exponentially over the last two decades, and that pace is not slowing. Gartner predicts that in a four-year span, revenue in the ediscovery market will nearly double. [1] Yet, even as computing power increases to meet data volume, legal professionals are frustrated with their current ediscovery platform’s performance.

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With the experience of having reviewed nearly 100 million documents since 2014, the Thomson Reuters Legal Managed Services team has identified the seven pitfalls most frequently experienced with current ediscovery solutions and what legal professionals should look out for when considering their ediscovery needs.

• Unreliable Software: Legal professionals using outdated platforms are often frustrated by system crashes as multiple users log on. Such platforms were built utilizing old technology and have been cobbled together over time, making the underlying technology overly complex and, in turn, unreliable. Outdated platforms are not well equipped to handle the uploading of additional files and the consistent need for system refreshes as new data emerges. The infrastructure of today’s systems must be backed by robust technology with the scale to support the increasing volume of data and high demand for a nonlinear process that matches the nonlinear nature of litigation. When considering a new solution, legal professionals should demand guarantees around system performance and up-time. 

• Unpredictable Pricing: Law firms and in-house legal teams are under immense pressure to contain litigation costs. Existing ediscovery solutions often rely on complex pricing structures that charge users piecemeal for common tasks or additional users, resulting in unpredictable costs. Ediscovery solutions with a predictable and transparent pricing model will allow firms to better plan for and manage costs. Inquiring upfront about how a vendor handles new data and potential overage charges can help legal professionals properly manage budgets and expectations with clients. The bottom line is important to all parties involved.

• Inaccurate Search Results: Law firms and legal professionals put their reputations on the line with every discovery production. Too often, existing software prioritizes speed over comprehensive and reliable accuracy. When results are not complete or accurate, legal professionals running the search may need to complete significant extra work or they face the risk of missing information. An advanced system should not only ensure speed, but the full set of relevant results – each time a search is conducted – so users can be confident in their findings.

• Slow Search Functions: The other side of the “speed vs. accuracy” coin is that some platforms cannot deliver accurate results quickly, leading to unacceptable slow-downs in the ediscovery process. The old adage is true: time is money. A search in an ediscovery platform should be intuitive to how attorneys think and work. When selecting a platform, purchasers should ask the provider if the system uses a distributed-server architecture, which provides scale and ensures search speed is the same regardless of whether the dataset they are searching is 1GB or 100TB.

• Complex User Interface: As mainstream consumer technology becomes increasingly user-friendly, legal technology has failed to keep up. The importance of ediscovery to today’s legal process cannot be understated, so it is critical that solutions are easy for users to navigate. Legal professionals can determine this quickly by looking at the software’s interface. If navigating the interface’s system without help is a challenge, it will be difficult for the rest of the team, as well.

• Lack of Security Features: Some newer ediscovery platforms tout streamlined interfaces and speedy search capabilities. However, these platforms often lack the powerful infrastructure and critical security features of more traditional (and, unfortunately, less streamlined) solutions. These features are critical, especially amid growing concerns over cybersecurity, and an advanced system should make these features available in a streamlined package. 

• Inadequate Support: Legal professionals do not have time to wait on hold for their ediscovery solution’s support team to resolve an issue, nor do they have the time to bring inexperienced case managers up to speed. An easy-to-use system backed by a consistent, ACEDs certified support team who can work around a litigator’s schedule and needs ultimately saves time and resources.

Legal professionals deserve a platform that addresses all of their needs with none of the pitfalls that too often come with existing ediscovery solutions. By partnering with a provider that understands their needs, legal professionals can regain confidence and control over the discovery process, protecting their reputations and better serving their clients.

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