In our last post, we began our discussion of speaking legal with seven litigation stages to know. Another aspect of speaking legal involves being familiar with rules involving important considerations for conducting effective discovery. Though there are plenty, we’ll focus on seven of these rules.
Effective discovery needs to be proportional, planned and properly certified. It’s also important to understand your options for form of production, your obligations regarding objecting to discovery requests, and your options for requesting ESI from non-parties. Perhaps most importantly, you need to avoid sanctions for failing to preserve ESI and you need to know how to protect yourself in the event of an inadvertent disclosure of privileged information.
Speaking Legal: Seven eDiscovery Rules to Know
With that in mind, here are seven eDiscovery rules you need to know to address the eDiscovery objectives discussed above – the first six from the Federal Rules of Civil Procedure (FRCP) and last one from the Federal Rules of Evidence (FRE):
- Proportionality – Rule 26(b)(1): This rule establishes the six parameters for proportionality in discovery and replaces the standard that existed prior to December 2015 of “reasonably calculated to lead to the discovery of admissible evidence”. Those parameters are: 1) the importance of the issues at stake in the action, 2) the amount in controversy, 3) the parties’ relative access to relevant information, 4) the parties’ resources, 5) the importance of the discovery in resolving the issues, and 6) whether the burden or expense of the proposed discovery outweighs its likely benefit. If you’re going to be involved in a proportionality dispute in Federal civil court, it’s important to keep these parameters in mind.
- Meet and Confer – Rule 26(f): This rule discusses the “conference of the parties”, commonly known as the “meet and confer” and discusses the timing and content of the conference itself, as well as the parameters of a discovery plan, which documents the agreements and disputes between the parties regarding how discovery will be conducted. The “meet and confer” is the most important tool in avoiding or minimizing discovery disputes, so it’s important to be fully prepared for it to agree on a plan that can work for your client.
- Signing and Certification – Rule 26(g): This rule addresses signing disclosures and discovery requests, responses and objections. A key section of this rule is Rule 26(g)(3), which deals with sanctions for improper certification (which includes improper certification of a disclosure). This puts the responsibility square on the attorney to ensure that the discovery response is complete and correct before signing.
- Form of Production and Objections – Rule 34(b): This rule addresses the procedure for discovery and it enables the requesting party to “specify the form or forms in which electronically stored information is to be produced”, so it’s important to carefully consider the form to request that is most useful to your case, including key metadata. It also addresses a requirement for parties to “state with specificity the grounds for objecting to the request, including the reasons” and “state whether any responsive materials are being withheld” on the basis of an objection. Courts are routinely waiving “boilerplate” objections, so it’s important that any objections you make are specific as to the reason.
- Spoliation Sanctions – Rule 37(e): This rule addresses sanctions for spoliation of ESI that prejudices the party that should have received that ESI. While mistakes can happen, demonstrated “intent to deprive” a party of ESI can result in severe sanctions, including dismissal or default judgment. Many disputes happen in discovery regarding spoliation of ESI and sanctions requests to address it.
- Subpoenas to Non-Parties – Rule 45: It has become commonplace to expand discovery to non-parties in the litigation, especially with so many third-party cloud providers hosting information for organizations. This rule addresses the mechanics for issuing subpoenas, including for discovery purposes. The Sedona Conference recently issued a second edition of a Commentary with considerations and practice pointers for issuing and responding to Rule 45 subpoenas, available free here.
- Waiver of Privilege – Rule 502: This FRE rule addresses disclosure of a communication or information covered by the attorney-client privilege or work-product protection. Subsection (b) addresses the three factors considered to determine whether inadvertent disclosure of privilege materials constitutes a waiver of privilege. However, Subsection (d) enables you to file a court order to avoid waiver of privilege under any circumstances, not just in the current case, but also in any other federal or state proceeding! There’s no reason not to file a Rule 502(d) order in Federal cases and template examples are available in this Sedona Conference Commentary on Protection of Privileged ESI, available free here.
While these aren’t the only rules dealing with eDiscovery practices, they are (arguably) the most important to know. Many state rules address similar considerations regarding these Federal rules, with variations from state to state, so it’s important to know the state rules if you’re dealing with a state case. Regardless, understanding these seven rules will go a long way in preparing you for speaking legal in eDiscovery!
In the next post, we’ll begin our discussion of speaking technical in eDiscovery!
For more information about Cobra’s eDiscovery services (including project management services), click here.