On September 20, 2005, the Judicial Conference Committee on Rules of Practice and Procedure sent the proposed electronic discovery amendments to the Federal Rules to the Supreme Court for its consideration. The Committee unanimously approved the proposed amendments to Civil Rules 16, 26(a), 16(f), 33, 34 and 45 and Form 35, which will officially go into effect in December 2006. While many believe that organizations should see bountiful cost savings as a result of these changes, just the opposite may be true. In fact, organizations will most likely incur more costs, more often.
For example, Rule 26(f) requires that parties sit down together before discovery begins to discuss the electronic discovery requirements and agree on some form of procedure or protocol to govern the process. In theory, this rule encourages uniformity and provides a structure for earlier and more predictable motion practice around electronic discovery. In reality, current electronic discovery motion practice (when parties disagree) usually ensues after requests for production are received. Many cases are dismissed, narrowed or settled by that time. Under the new rule, there will now need to be an early conscious agreement to “bypass” electronic discovery rather than unconsciously ignoring it until the discovery cutoff date occurs. This discussion of electronically stored information and agreement on preservation and production, so early in a case, will require a big change in behavior.
As the Note warns: “It may be important for the parties to discuss those systems and accordingly important for counsel to become familiar with those systems before the conference. With that information, the parties can develop a discovery plan that takes into account the capabilities of their computer systems.”
Currently, this discussion and planning taking into account what is “real” as opposed to what is “imagined” is excellent practice as opposed to “best practice.”
In some cases, where the parties’ attorneys understand the implications of what they are promising to do, the new rules will be quite successful. Others will result in traps for the unwary. With the new rules, there’s no making up how fast computers work, or that anything can be searched anywhere for anything, or that anything can be produced in a particular way. It’s imperative to ask for and get service-level commitments from the CIO’s team; from the outside counsel who will review material; and from the service provider(s) who will assist in the collection, processing, review and production of such material. This will be exceptionally important if the discovery plan becomes part of a court order. This plan should include a section on rescheduling as part of any order because there are often surprises in the data. The responding party will bear the brunt of missing schedules.
In short, an organization will need to have its electronic ducks in a row early in the case. This is a hidden cost that’s generally borne by the general counsel, the information technology group, outside counsel and outside experts. These folks will spend quite a bit time together to generate any cost savings in collection, processing, review and production–and to avoid painting themselves in a corner.