06/01/16

IN THIS ISSUE

SIX MONTHS LATER: A GUIDE TO THE 2015 E-DISCOVERY AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE

Joseph P. Moriarty and David A. Kushner

It has been six months since much-touted amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015.  The amendments to the Federal Rules embody a desire to reduce the costs of litigation—especially the expense of omnipresent and expanding e-discovery—and to promote the more speedy resolution of civil cases. The following amendments are particularly notable to electronic discovery:

  • Early Case Management– Amended Rules 4, 16 and 26 quicken the pace of litigation by shortening the period of time in which a plaintiff may serve a defendant, requiring Rule 16 scheduling conferences to occur earlier, and allowing a party to propound requests for production prior to the Rule 26(f) conference.

    • Now, under Rule 4(m), the plaintiff must – absent a showing of good cause or in limited circumstances – obtain service on a defendant within 90 days after the complaint is filed.

    • Under amended Rule 16, a court must issue a Rule 16(b) scheduling order, unless the judge finds good cause for delay, within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.

    • The amendments to Rule 26 permit a party to send requests for production prior to the Rule 26(f) conference, although a party served need not respond until twenty-one days after the Rule 26(f) conference.

  • Scope of Discovery and Proportionality – Amended Rule 26 refocuses the emphasis on proportionality with the goal of limiting the scope of discovery request to the needs of the specific case. Jason Ohana’s article in this newsletter discusses this amendment in more detail, and provides some examples of recent cases interpreting the new rules on proportionality. 

  • Specificity in Objections to Requests for Production – Amended Rule 34 alters how parties should object and respond to requests for production of electronic discovery. Jonathan Tan’s article in this newsletter discusses this amendment in more detail, and likewise provides examples of recent cases interpreting the new rules. 

  • Preservation and Sanctions – Amended Rule 37(e) creates a new, uniform ESI-specific sanctions regime. In our previous newsletter (link here), we explained the then anticipated, now applicable standard for determining sanctions of the loss of ESI. Under the amended Federal Rules, before a court may impose a sanction under Rule 37(e), the party seeking sanctions must make a threefold showing. It must show that the ESI: (1) “should have been preserved in the anticipation or conduct of litigation;" (2) was “lost because a party failed to take reasonable steps to preserve it;” and (3) “cannot be restored or replaced through additional discovery.” If all three of the of the above criteria are met, Rule 37(e) permits a court to impose sanctions along a two-level, graduated scale reflecting the culpability of the spoliator: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter default judgment. At the first-level, the amended Rule 37(e) thus requires a showing of prejudice before a court can impose a sanction and limits the sanction in such a case to a measure no greater than necessary to cure the prejudice. The second-level permits a court to impose the most severe sanctions, but requires a showing of intentional spoliation.

These significant amendments to the Federal Rules are already changing discovery practices in federal courts across the country, and the amendments to the Federal Rules appear promising in terms of reducing the costs of e-discovery and preserving ESI.

For example, Chief U.S. District Judge Glen E. Conrad of the Western District of Virginia, in ruling on a motion to compel, noted the court “will put a greater emphasis on the need to achieve proportionality, in determining whether to grant the motion to compel,” Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 n. 2 (W.D. Va. 2016). Similarly, in Henry v. Morgan’s Hotel Group, Inc., No. 15-cv-1789. 2-16 WL 303114 (S.D.N.Y. Jan. 25, 2016), a court in the Southern District of New York granted a motion to quash subpoenas issued to third parties and noted the newly amended Rules limit discovery to that which is relevant and proportional to the needs of the case.  Additionally, in Noble Roman’s Inc. v. Hattenhauer Distrib., No. 1-14-cv-01734, 2016 WL 1162553 (S.D. Ind. Mar. 24, 2016), the court entered a protective order and prohibited discovery noting the assertion of “relevancy” was “not good enough” as the discovery requests failed the proportionality test under amended Rule 26(b).

Moving forward, we expect federal courts to grapple with applying the amended Federal Rules to discovery disputes over relevancy, proportionality and sanctions. The ultimate impact the amended Federal Rules has on reducing the costs of litigation will largely depend on how attorneys and courts implement the Rules over the coming years. It is important to keep in mind that cases decided before the 2015 amendments may not provide the best guidance for preservation obligations and e-discovery. Once litigation is anticipated, businesses should work with their e-discovery counsel to make reasonable decisions on preservation and litigation strategies.
 

Revisiting Proportionality

Jason E. Ohana

In a previous edition of this Newsletter, I wrote about using the concept of proportionality to limit discovery costs.  [Link to Fall 2015 Article].  With the recent amendments to the Federal Rules of Civil Procedure that took effect December 1, 2015, this topic has continued to garner considerable attention.  Indeed, U.S. Supreme Court Chief Justice John Roberts dedicated the bulk of his 2015 Year-End Report on the Federal Judiciary to proportionality.

The amended Rules emphasize a proportionality standard that limits the scope of discovery requests to the needs of the case.  It has now been five months since the amended Rules took effect.  This Article will take a look at how the new emphasis on proportionality has played out in the trenches.  Before turning to the recent cases, however, I pause briefly to remind the reader what exactly changed on December 1, 2015. 

The New Emphasis on Proportionality

To help combat the problem of “over-discovery,” the Judicial Conference Advisory Committee on Civil Rules (the “Committee”) made a number of revisions to Rule 26, which is the Rule dealing with the scope of discovery.  One of the changes made was to move the proportionality requirement into the definition of what is discoverable.  Prior to this change, the requirement existed, but it was set out in a separate subsection, as a ground on which a discovery request could be objected to.  Rule 26(b)(1) now provides as follows:

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, 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.

Fed. R. Civ. P. 26(b)(1) (emphasis added).  In placing proportionality factors into Rule 26(b)(1), the Committee noted that the individual factors (e.g., the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, etc.) should not be used in isolation to undermine the purpose of proportionality. 

The other major change to this Rule was to eliminate, from the provision permitting discovery of inadmissible information, the qualifier, “reasonably calculated to lead to the discovery of admissible evidence.”  The Committee found that this phrase had been misused to define (and thus enlarge) the scope of discovery.  Chief Justice Roberts had this to say of Rule 26(b)(1)’s new formulation: “Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” 

In addition to Rule 26(b)(1), several other Rules have also been revised to greater emphasize the centrality of proportionality in discovery.  For example, Rule 1 was amended to clarify that the courts and the parties have a duty “to secure the just, speedy, and inexpensive determination of every action and proceeding,” and Rule 37(e), which governs preservation of electronically stored information (“ESI”), was revised to require only that a party take “reasonable steps” to avoid the loss of ESI.  As the Committee points out in the Advisory Committee Notes, an important “factor in evaluating the reasonableness of preservation efforts is proportionality.” 

How are Courts Interpreting the Revised Rule 26(b)(1)?

Five months in, the question is whether the renewed focus on proportionality has changed the way courts rule on discovery disputes.  A number of courts have already begun applying the amended Rule 26(b)(1), and though not all agree that the revisions reflect a substantive change in the law, most are carefully considering proportionality challenges.  A summary of several recent cases follows.

Cases Striking Discovery Requests Under the Doctrine of Proportionality

  • Vaigasi v. Solow Mgmt. Corp., No. 11 Civ. 5088 (RMB)(HBP), 2016 WL 616386 (S.D.N.Y Feb. 16, 2016).

Vaigasi is one of the more remarkable cases citing the revised Rule 26(b)(1).  In it, the court found that the plaintiff’s requests for documents and ESI were “far out of proportion to his claims,” and that they were “the product of a conscious effort to draft the most burdensome document requests possible.”  Upon making these findings, the Court not only denied the plaintiff’s motion to compel, but also sanctioned the plaintiff, by, among other things, ordering the plaintiff to pay the defendant’s reasonable attorneys’ fees incurred in addressing the discovery motions.  The court anticipated that such fees would “exceed $50,000.”

  • Pertile v. Gen. Motors, LLC, No. 1:15-cv-00518-WJM-NYW, 2016 WL 1059450 (D. Colo. Mar. 17, 2016).

In Pertile, the plaintiffs sued General Motors for injuries sustained in a rollover accident.  They sought to compel production of Finite Element Analysis (“FEA”) Models GM engineers had generated in the process of designing the truck model at issue in the case.  The court, while acknowledging that the models “could yield information relevant to this action,” balanced that fact against the harm GM would face in producing sensitive trade secret analysis. 

The court ultimately denied the plaintiff’s motion to compel, holding that the request for FEA Models was not proportional to the needs of the case.  In reaching this determination, the court considered the fact that GM had already produced electronic CAD drawings of the final design of the truck as well as engineering reports capturing what GM “knew or should have known from the FEA Models.” 

  • Gilead Sciences, Inc. v. Merck & Co., Inc., No. 5:13-cv-04057-BLF, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016).

In Gilead, the court opened its opinion with this analysis of amended Rule 26(b)(1):

What will change—hopefully—is mindset. No longer is it good enough to hope that the information sought might lead to the discovery of admissible evidence. In fact, the old language to that effect is gone. Instead, a party seeking discovery of relevant, non-privileged information must show, before anything else, that the discovery sought is proportional to the needs of the case. The present dispute offers a good example of the wisdom of the Advisory Committee on Civil Rules in elevating proportionality in defining the scope of permissible discovery.

The court went on to deny Merck’s motion to compel production of two test tubes shown in a photograph that Merck suspected might contain the same compound that the underlying patent dispute was about.  The court held that with no indication that the compound was the same, Merck’s request was akin to “requiring GM to produce discovery on Buicks and Chevys in a patent case about Cadillacs simply because all three happen to be cars,” and concluded that “given the cost and potential delay introduced by the requested production, Merck's request is precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude.”

Cases Upholding Discovery Requests Over Proportionality Objections

  • Rui He v. Rom, No. 1:15-CV-1869, 2016 WL 909405 (N.D. Ohio Mar. 10, 2016).

In Rui He, the corporate defendants argued that a number of the plaintiffs’ discovery requests were “not proportional to the needs of the case, and that Plaintiffs ha[d] not narrowed their requests to the new Rule 26 standard adopted in 2015.”  These requests sought production of “financial documents, tax returns, accountings, and information on assets.”  The court conceded that the requests were extensive but nevertheless granted the motion to compel because the plaintiffs’ “allegations of fraud and illegal activity [were] similarly extensive and troubling.”  The court assigned great weight to the allegations that the defendants had “improperly moved around client funds, and made intra-company sales to generate profit, hide assets and to commit fraud on members of the putative class.” 

  • Morgan Hill Concerned Parents Assoc. v. Cal. Dep’t of Educ., No. 2:11-cv-3471 KJM AC, 2016 WL 304564 (E.D. Cal. Jan. 26, 2016).

In Morgan Hill, the defendant made proportionality objections as to two broad categories of document requests.  The case involved a challenge to the State of California’s compliance with certain federal statutes governing the education of children with disabilities.  The defendant interposed a general proportionality objection to requests that sought “state-wide” documents and to requests that sought documents related to students who were deemed not disabled.  Regarding the first class of documents, the defendant argued that the plaintiffs were only 17 children in 7 school districts, so to the extent requests sought documents related to 1,022 districts and over six million children, they were disproportionate to the needs of the case.  The court rejected this argument, holding that discovery of statewide documents was proportionate because the suit alleged systemic statewide noncompliance with the federal statutes.  The court also rejected the argument that discovery should be limited to documents regarding disabled students because such a limitation would prevent plaintiff from challenging non-disability determinations the defendant had made.

Cases Finding a Middle Ground

Sometimes neither party totally prevails on its proportionality argument.  In these cases, courts are left to find a middle ground between granting and denying the discovery motion. 

  • Siriano v. Goodman Mfg. Co., No. 2:14-cv-1131, 2015 WL 8259548 (S.D. Ohio Dec. 9, 2015).

In Siriano, the court was faced with a motion to compel responses to numerous requests for production.  The court found that the requests were for relevant documents but also that the “Defendants’ discovery costs could be significant.”  The court looked, for guidance, to both Rule 26(b)(1) and Rule 1 of the Federal Rules of Civil Procedure.  The court remarked, “Restoring proportionality is the touchstone of revised Rule 26(b)(1)’s scope of discovery provisions,” and it cited Rule 1’s injunction that “the civil rules ‘should be construed and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”  (emphasis in original). With these principles in mind, the court ordered a discovery conference to discuss whether conducting discovery in phases would be beneficial and instructed the parties to “engage in further cooperative dialogue in an effort to come to an agreement regarding proportional discovery.”

  • Oracle Am. Inc. v. Google, Inc., No. 10-cv-03561-WHA (DMR), 2015 WL 7775243 (N.D. Cal. Dec. 3, 2012).

Oracle sought to add 22 individuals to the list of custodians from whom it sought electronically stored information (“ESI”).  The court found that, with respect to this request, “Neither party submitted a proper analysis of the Rule 26 proportionality factors.”  Specifically, the court found that while Oracle provided some information regarding the relevance of each custodian, it did not “address any of the proportionality factors, including the importance of the requested discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”  By the same token, the court found that Google failed to assert that the discovery sought was irrelevant or too expensive to produce.  Faced with this “failure to fully address the legal standard,” the court was left to “make its best judgment based on the limited information before it.”  The court settled on a compromise, granting Oracle access to ESI from 10 additional custodians of its choice (out of the 22 it had requested). 

Conclusion

While the concept of proportionality is nothing new, courts are clearly taking notice of the new emphasis in the 2015 amended Rules on what is necessary for the case in light of the related burden or expense of the discovery request.  This is a welcome development that may lead to substantial cost savings.  Moving forward, it is important for parties to be familiar with the application of the proportionality limitation. Several practical pointers can be drawn from how courts have already applied the amended Rules on proportionality: (1) Parties need to be cognizant of how asserting claims or defenses may expand the scope of discovery; (2) Parties need to object on proportionality grounds when the discovery request does not satisfy the proportionality limitations in the amended Rules; (3) Parties need to be ready to provide specific details on the burdens and expenses related to the discovery request; (4) Parties need to consider cost-shifting some or all of the expense to the requesting party; (5) Parties need to point out alternative means to obtain the information from another source; (6) Parties should cooperate with each other on negotiating the scope and limits of discovery requests, including considering use of technology-assisted review tools, to reduce the cost; (7) Parties should be careful when dealing with case law on proportionality decided before the amended Rules went into effect; and (8) Parties need to carefully consider whether their own discovery requests are proportionate to the needs of the case.  Lastly, while the amended Rules generally do not apply to pre-litigation conduct, similar proportionality assessments are made with respect to the reasonableness of evidence preservation decisions when litigation is or should be reasonably anticipated. 


Requests for Production Under the 2015 Amendments to the Federal Rules

Jonathan T. Tan

On December 1, 2015, much-touted amendments to the Federal Rules of Civil Procedure took effect.  In a previous newsletter, we explained a few of the significant amendments (sanctions for failing to preserve electronic evidence and proportionality) to the Federal Rules that the Judicial Conference Advisory Committee on Civil Rules (the “Committee”) had proposed and the United States Supreme Court had approved.  By its silence, Congress acquiesced to those amendments, and they took effect as scheduled.  Overall, the amendments to the Federal Rules embody a desire to reduce the costs of litigation—especially the expense of omnipresent and expanding e-discovery—and to promote the more speedy resolution of civil cases.  This article focuses on two significant amendments to the Federal Rules regarding Rule 34 requests for production.  First, a revision to Rule 26 now permits parties to propound requests for production prior to the Rule 26(f) discovery planning conference.  Second, the revision to Rule 34 heightens a party’s obligations when responding to Rule 34 requests, including requiring specificity in any objection, and allows a party to produce documents and ESI responsive to such requests within a “reasonable time.” 

Rule 26: Early Requests for Production

The amendments to Rule 26, among other things, alter when a party may propound requests for production under Rule 34.  While lawyers and commentators have focused most of their attention on the proportionality amendment to Rule 26 (rightfully so), the Federal Rules now permit a party to send requests for production prior to the Rule 26(f) conference.  The general rule—subject to a few exceptions—under Rule 26(d) remains as before: “a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f) . . . .”  But the Supreme Court and Congress have approved an additional exception for requests for production.  More than twenty-one days after service of process, a party may now serve Rule 34 requests for production on a plaintiff or a defendant who has been served with process. 

Rule 34 requests are the predominant method for obtaining ESI from a party opponent.  Consequently, by allowing early Rule 34 requests, the amended Federal Rules push forward the beginning of e-discovery. 

Significantly, a party served with an early request need not respond until twenty-one days after the Rule 26(f) conference.  Thus, while the amended rule permits a party to issue an early request, it does not shorten the period in which the party must respond thereto.  Indeed, a party that has received an early Rule 34 request will have the same period of time to respond to the request as if it was served immediately after the Rule 26(f) conference.  As an aside, for those familiar with Eastern District of Virginia Local Civil Rule 26(C), objections likely need not be filed until after the Rule 26(f) conference.  Under that local rule, a party must serve its objections to a Rule 34 request within fifteen days of service or, where applicable, fifteen days after removal or transfer.  The early Rule 34 request is "considered to have been served at the first Rule 26(f) conference."  A reading of the plain language of both rules as to "service," and early Rule 34 requests being "served" as of the Rule 26(f) conference, suggests that, in the Eastern District of Virginia, a party will not be required to object to an early Rule 34 request any earlier than fifteen days after the Rule 26(f) conference. 

Given that no response is required until after the Rule 26(f) conference, why do early Rule 34 requests matter? Parties will now have to prepare for discovery, especially discovery of electronically stored information, even earlier than before the amendments. Whether lawyers and their clients like it or not, formal e-discovery now begins twenty-one days after service of process.  For proactive parties, early Rule 34 requests can frame the issues for a serious and comprehensive Rule 26(f) conference that will cut short potential discovery disputes before they arise.  However, early Rule 34 requests also require weighing the benefits of resolving potential issues early, with the possible advantage to an opposing party of a longer period of time to formulate objections.  In certain instances, an early Rule 34 request may simply provide an opposing party with more time to frame its objections to the request and increasethe contentiousness and cost of resolving the disputed issue.  Whether to use early Rule 34 requests will depend on the facts of each case.  Early Rule 34 requests are just another tool that must be considered while formulating a discovery strategy.  By adding another method of discovery, the amendment to Rule 26(d) simply magnifies the importance (and benefits) of developing early a tailored e-discovery strategy. 

Rule 34: Specificity in Objections

Proportionality has been the buzzword of this most recent series of amendments to the Federal Rules.  Often overlooked in the discussion surrounding the 2015 amendments are the amendments to Rule 34.

Rule 34 now requires that any objection be made with specificity as to each item or category set forth in a request for production.  Rule 34(B) provides:

For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. . . .

The amendments to Rule 34(b), thus, establish that boilerplate objections that a request is overbroad, vague, and unduly burdensome do not suffice without an explanation of the specific reason why the request is objectionable.  Boilerplate objections were considered improper by many courts prior to the 2015 amendments, but the revisions erase all doubt: boilerplate objections that do not state the specific reason why the request is objectionable are inadequate.  See, e.g., Wilson v. Wal-Mart Stores, Inc., No. 2:15-CV-1791-RCJ-VCF, 2016 WL 526225, at *7 (D. Nev. Feb. 9, 2016) (holding that a boilerplate burdensomeness objection was inadequate because it “fail[ed]t o explain how responding to [the request] [was] unduly burdensome.”).

This is not to say that a party may no longer object to, for example, over-breadth.  However, if the request is appropriate in some form, the responding party must identify the scope of the request that is not objectionable.  In other words, an objection should specify a non-objectionable alternative.  The Committee has provided an example apropos of this newsletter.  When faced with an overly broad request, “A statement that the responding party will limit the search to documents or electronically stored information created within a given period of time prior to the events in suit, or to specified sources”—in the Committee’s view—illustrates a suitable response. 

Relatedly, under Rule 34, if a party produces any documents subject to an objection, it must state whether it is withholding other documents responsive to the request.  Before the amendments, many lawyers’ preferred method of drafting Rule 34 responses was to recite a grocery list of objections and then state that, notwithstanding, “please see attached documents.”  The proponent of the request was then left to ponder whether any other documents responsive to the request existed.  Now, Rule 34(b)(2)(C) requires that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.”  Additionally, “[a]n objection to part of a request must specify the part and permit inspection of the rest.”  Together, these changes should alert the opposing party to the existence of additional documents, in the hope that this will, in the words of the Committee, “facilitate an informed discussion of the objection.”  The Advisory Committee Notes clarify that a “detailed description or log of all documents withheld” need not be provided.  Courts already have begun implementing these rules.  For example, in R. Fellen, Inc. v. Rehabcare Group, Inc., a court ordered a party that had produced documents subject to objections to comply with Rule 34(b)(2)(C) by serving further responses addressing whether any responsive materials were being withheld based on the objections.  CASE NO. 1:14-CV-2081-DAD-SMS, 2016 WL 1224064, at *3 (E.D. Cal. Mar. 29, 2016). 

Finally, the amendments to Rule 34 confirm that a usual method of responding to Rule 34 requests—stating that responsive documents and ESI will be produced, rather than permitting inspection thereof—is permissible, but portend discovery disputes over the timeliness of production.  The amended Rule expressly establishes that “[t]he responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection.”  In view of the prevalence of rolling production in cases involving significant volumes of documents, the Advisory Committee Notes explain that “[w]hen it is necessary to make the production in stages the response should specify the beginning and end dates of the production.” 

Significantly, as to timing, the amendments provide that the responding party must produce the documents and ESI within the time specified in the request or “another reasonable time specified in the response.”  Thus, a party need not respond to a request for production within the timeline imposed by the proponent, as long as it responds within a “reasonable time.”  By incorporating a “reasonable time” standard, the amendments to Rule 34 undoubtedly invite discovery disputes about the timeline for production.  It is not difficult to imagine how a responding party’s view of how much time is “reasonable” to allow it to produce a legion of documents might differ from that of the proponent of the request.  The courts have not yet parsed what qualifies as a “reasonable time,” or the factors to consider in making such an assessment.  Of note, Rule 45(d)(3)(A), which involves subpoenas to non-parties, includes as a basis for quashing a subpoena the failure to “allow a reasonable time to comply.”  Because of the similar language and context of Rules 34 and 45, existing Rule 45 jurisprudence might serve as a body of readymade law from which courts might choose to draw to flesh out what qualifies as a “reasonable time” under Rule 34.  To date, they have not had occasion to do so. 

Conclusion

Although the 2015 amendments to the Federal Rules affect all litigants in federal courts, they are of particular significance in the context of e-discovery.  As part of an effort to reduce the time in which cases stagnate at the beginning of litigation, Rule 26(d) now permits a party to serve early requests for production on another party.  Responses are not required until after the Rule 26(f) conference, but early Rule 34 requests will require attorneys and their clients to begin tackling e-discovery issues from the onset.  A party might not issue, or have to respond to, early requests for production in every case, but the availability of early Rule 34 requests adds a strategic consideration early in litigation.  A further amendment requires a party responding to a Rule 34 request to state its objections thereto with specificity.  Even prior to the amendments, many courts routinely overruled boilerplate objections.  The amendment codifies this rule and, thus, compels objecting parties to perform the work necessary to substantiate their objections before raising them, rather than waiting to provide specifics in response to a motion to compel.  Importantly, if a request is objectionable only in part, Rule 34 now places on the responding party the onus of identifying what part of the request is non-objectionable, producing the documents and ESI responsive to the non-objectionable portion, and stating whether the responding party is withholding any documents or ESI subject to its objection.  In addition, Rule 34 now permits a party to produce copies of documents within a “reasonable time specified in the response.”  Courts have not yet clarified what qualifies as a “reasonable time.”  This may be the next major battleground in e-discovery.    

Critical Takeaways from the Revisions Regarding Requests for Production:

  • Rule 26(f) now permits parties to propound requests for production prior to the Rule 26(f) conference, though the time to object and respond does not begin to run until such conference.
  • Objections to requests for production must be made with specificity.  If a request is objectionable only in part, the objecting party must specify the scope of the request that is objectionable and produce the documents and ESI responsive to the non-objectionable portion. 
  • A party must state whether it is withholding any responsive documents or ESI subject to its objections to a request for production.
  • A party may produce copies of documents and ESI in lieu of permitting inspection, and it need not complete its production within the time specified by the proponent of the request, if it does so within a “reasonable time specified in the response.” 
     

Having Access to the Right Tools Is Essential To Controlling E-Discovery Costs

Amanda S. Merrill

In a recent survey of Fortune 500 Companies, general counsel listed electronic discovery costs as a top litigation concern.  This is not surprising, as the sheer volume of potentially relevant electronic information increases exponentially every year.  As the scope of e-discovery has continued to expand, so too have the vendors, tools, and software options available to assist lawyers and businesses with the process.  In my last article from the fall of 2015 (available on our website), I summarized some of the basic tools and strategies used by businesses and their lawyers to (1) preserve relevant information, and (2) effectively and efficiently manage the review and production process.  

Although we have excellent relationships with some of the leading e-discovery vendors (and utilize their services where appropriate), we pride ourselves on having the technological capability to handle appropriate e-discovery issues in-house, at a fraction of the cost a third-party vendor would charge.  For example, in a recent trade secret litigation we were able to save the client hundreds of thousands of dollars by relying primarily on in-house software, hardware, and personnel for the e-discovery components of the case.     

Since 2015, Willcox Savage has continued to make significant investments in the technology and tools that allows us to provide increasingly customized and cost-effective e-discovery service to our litigation clients.   Most recently, Willcox Savage expanded our in-house software offerings this year to include Eclipse SE.  This eDiscovery review and production platform was selected from an increasingly-advanced universe of options we tested actively over the last few years.  Eclipse SE stands out in the market for its intuitive layout, streamlined review platform and flexible licensing.  Eclipse SE allows our review teams (or internal client reviewers) to easily conduct word searches, date filters and other essential document culling techniques in order to narrow the scope of documents which should be reviewed or produced.  Eclipse SE also has extensive administrator tools such as review batches, comprehensive progress reporting, and smart (or self-updating) folders.  A particularly popular option is persistent highlighting, where key names or terms are color-coded throughout the database - regardless of what other filtering or targeting is active.  This quickly directs the reviewers’ attention to those relevant terms, again making the review process more efficient and effective.     

We are confident that our internal use of Eclipse SE will often be the best and most economical option for document culling and review projects.  However, we also maintain our existing relationships and preferred pricing with leading e-discovery vendors.  Every case is different, and we encourage our clients to spend some time at the beginning of each matter evaluating which combination of tools is likely to be most efficient for the case at hand.   Our E-Discovery and Litigation Support professionals can be available for consultation about current best practices in document management, culling, review, and production.

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