Cooperative Process for Minimizing Discovery Burden, Expense

Article excerpt

[ILLUSTRATION OMITTED]

The challenges associated with discovery in the world of increasingly voluminous and complex electronically stored information (ESI) are well documented. These challenges call for a different approach to how parties interact with respect to meeting their discovery obligations. The new approach calls for cooperation between parties, beginning in the early stages of discovery, and--more than ever--demands that an organization's legal, IT, and records and information management professionals work together to provide an effective and cost-efficient response.

Traditional Approach: 'Discovery about Discovery'

In the traditional approach to the discovery process, plaintiffs might issue broad requests for the production of documents early in the litigation without much, if any, information about defendants' sources of information. In response, defendants serve boilerplate objections, without disclosing what they are and are not capable of providing. Defendants then proceed to collect and produce what they deem to be a reasonable response, leaving plaintiffs to guess what was and was not done behind the scenes.

More often than not, this results in a protracted process of "discovery about the discovery"--including 30(b)(6) depositions of witnesses about sources of ESI, steps taken to preserve relevant information, document retention policies and practices, and collection and production protocols--followed by disputes, motions, and hearings on whether defendants satisfied their obligations. The result is months, if not years, of contentious litigation about the process of discovery itself, increasing the costs of litigation, wasting judicial resources, and distracting from the merits of the litigation.

New Approach: Meet & Confer

In 2006, the U.S. Federal Rules of Civil Procedure were amended in an effort to address these issues and require parties to deal with e-discovery early in litigation. As noted in the 2005 "Report of the Advisory Committee on the Federal Rules of Civil Procedure" issued prior to the amendments taking effect, "The proposed amendments to Rule 16, Rule 26(a) and (f), and Form 35 present a framework for the parties and the court to give early attention to issues relating to electronic discovery, including the frequently recurring problems of the preservation of evidence and the assertion of privilege and work-product protection."

As noted in the 2007 case Board of Regents of the Univ. of Nebraska v. BASF Corp., "The overriding theme of recent amendments to the discovery rules has been open and forthright sharing of information by all parties to a case with the aim of expediting case progress, minimizing burden and expense, and removing contentiousness as much as practicable."

One of the most significant changes is the requirement under Rule 26(f) that the parties meet and confer on e-discovery issues very early in the case. That rule requires the parties to discuss "any issues relating to discoverable information; and to develop a proposed discovery plan."

Courts have also weighed in as they become increasingly intolerant of the "hide-the-ball" approach to discovery. In Mancia v. Mayflower Textile Servs. Co. in 2008:

   Rule 26(g) charges those responsible
   for the success or failure of pre-trial
   discovery--the trial judge and
   the lawyers for the adverse parties-with
   approaching the process properly:
   discovery must be initiated
   and responded to responsibly, in
   accordance with the letter and spirit
   of the discovery rules, to achieve a
   proper purpose (i.e., not to harass,
   unnecessarily delay, or impose
   needless expense), and be proportional
   to what is at issue in the litigation,
   and if it is not, the judge is
   expected to impose appropriate
   sanctions to punish and deter.

Issues to Discuss During Meet & Confer

Unfortunately, there is relatively little guidance in the federal rules on exactly what subjects the parties are expected to meet and confer about in an effort to reach early agreement. …