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Are the FRCP Amendments the Answer to Yesterday's E-Discovery Problems?

Created on April 15, 2014

Bob Rohlf Bob Rohlf, Esq.
Director of E-Discovery Strategies

By Bob Rohlf, Esq.

Following is a guest post by Bob Rohlf, Exterro’s Director of E-Discovery Strategies, who attended the Advisory Committee on Civil Rules meeting last week in Portland, Oregon.

I am the first to admit that technology won’t solve all of the problems facing e-discovery practitioners. But I will point out that changes to the Federal Rules of Civil Procedure (FRCP) move at a glacial pace, while technology advances at light speed. Last week’s meeting of the Advisory Committee on Civil Rules, which I attended, made this abundantly clear.  Although the Committee has been examining change proposals for over four years, the new rules still face uncertainty in four more stages of review before they can be enacted. I applaud the Committee members’ diligence and perseverance. However given the spectrum of panel participants and the scope of issues facing them, I was surprised that all votes for acceptance were unanimous. I can’t help but to wonder if the lack of dissent arose either from sheer exhaustion or surrender to an understanding that the proposals were the best that could be done under the circumstances.

The one area that technology cannot address is behavioral problems such as an unwillingness of the parties to cooperate, purposeful abuse of the rules to attempt manipulation of the case outcome or intentional destruction of case-relevant information. Rules changes to handle misbehavior may very well be in order. But much of the discussion around Rules changes centers on the cost of e-discovery – preservation costs, disproportionate discovery demands and costs for sanctions. Technology readily addresses both cost and workflow management, perhaps in a manner superior to (and certainly, quicker than) Rules changes.

It’s no surprise that the proliferation of smart electronic devices and tools has given rise to vast amounts of data, much of which becomes subject to discovery activities. This growth in data has generated a lot of e-discovery pain for organizations involved in litigation. Recognizing this, vendors have applied technology to reduce, to work with, or in some cases, to eliminate the problem. Workflow based tools, such as Exterro’s Fusion platform integrate the various e-discovery tools used by a legal team, facilitate team communication, standardize routine e-discovery activities, and document process transactions. The result is a great reduction in the risk that something will be overlooked or miscommunicated in managing e-discovery. A workflow platform can virtually eliminate the risk of sanctions arising from negligence.

Technology has also made great strides in reducing the cost of e-discovery. Tools that did not exist four years ago help legal teams to aggressively combat legal costs today. In the past many e-discovery processes had to be managed by specialists. Today legal teams can use cloud-based or in-house tools to perform their own work.  Here are some of the benefits the use of technology can have in e-discovery:

  • Readily available, easily understood technologies enable an organization to proactively index and search its data sources.
  • Ready access to the information helps the team to efficiently scope and plan their case at an early stage. Since most cases settle, having this information early on can greatly reduce related costs.
  • Technology makes it easier to identify, notify, interview and track prospective custodians.
  • Collection is no longer the burden it used to be. Data can be held in place, or selectively collected and stored.
  • Analytics greatly facilitate an understanding of the data content.
  • Predictive coding significantly reduces the cost of reviewing large volumes of documents while meeting or exceeding the results of a human-based review.
Technology continues to drive towards a decreased e-discovery cost. One complaint commonly expressed during the Rules meetings has been the cost of over-preservation. This is driven by a fear that a party would be sanctioned for spoliation. Facing unknowns in a case, everything is saved. And, if the truth be known, many organizations do not get rid of case evidence after the case is finished, further exacerbating the data retention problem. But proper use of software can help a legal team to defensibly narrow the scope of data held for a case, flag it for hold and collection, and upon case termination, provide notice that it can be safely deleted.

While the Rules Committee needs to address much of the behavior-based problems arising from the 2006 Rules changes, I fear that, with respect to cost control, it is solving yesterday’s problem. Although rapid data growth has created a lot of problems for discovery practices, technology has come a long way in the last 4+ years to resolving the attendant cost issues and reducing risk litigation profiles.

ON-DEMAND WEBCAST WITH CHAIR OF RULES COMMITTEE
For a more in-depth, insider’s peek into the nuances of the new amendments watch Exterro's complimentary webcast, “Countdown to the FRCP Amendments from Portland,” Chair of the Rules Advisory Committee, Judge David Campbell (D. Arizona), and committee member John Barkett, Partner at Shook Hardy Bacon, reviewed the amendments that passed and their potential impact on e-discovery practices.