Discovery, New Rules and a Need for Transparency

In a lawsuit the discovery process should allow each party to explore evidence in the possession of opposing parties, which may assist in proving their respective claims. The defendant is at an advantage in this process, since they typically possess the bulk of documents, data and other evidence. Their familiarity with the production is usually far superior to the plaintiff.

Parties might agree on the collection process; deciding from which persons data will be collected. But, it is the producing party who still holds the upper hand. Do employees use personal devices? Does the producing party know that a particular employee or department telecommuted by using their personal home computers a large amount of the time? It is the producing party who knows who the key employees really are as they relate to the key issues.

It is the producing party who typically makes the determination from whom to collect, what devices and which storage areas to search, and whether a particular custodian has documents relevant to the key issues. In addition what are or are not documents relating to the key issues are often viewed with a different perspective by the producing versus receiving party.

In current litigation against Ford alleging sudden acceleration in some of its vehicles, the Plaintiffs claim several things increasingly becoming boiler plate problems seen throughout litigation:

• A lack of transparency in the discovery process.
• The producing party unilaterally limiting document searches.
• Key custodians identified as irrelevant are later revealed to be primary authors through other discovery.

The way in which e-discovery has been handled usually places the defendant at an advantage and without very thoughtful judges with an abundance of time to consider the issues, the new rules could make the entire process even less equitable. The federal rules encourage cooperation amongst the parties and much of the case law talks about or around the need for some level of transparency. But, transparency is anathema to defendants and their lawyers.  At seminars they talk about throwing brick walls up and discuss ways to prevent opposing parties from seeing the methods they are using to collect, cull and produce data. Probably the best way to control costs is to have all parties involved in the discovery process and make it as transparent, at least in terms of methodologies, as possible.

We are increasingly seeing lawyers who work at firms and do nothing except discovery practice. Defense lawyers specializing in the discovery process have become adept at talking about cooperation; while quietly fashioning ways to obfuscate the discovery process by distorting the rules beyond the context of a cooperative endeavor. Sometimes the brick walls are the result of the client and sometimes a loss of vision for the process.

What can requesting parties do to overcome the age of faux cooperation?

• Be specific about the discussions in the Rule 26 meet and greet.
• Bring an IT expert or knowledgeable person with you to the meet and confer.
• Take greater time and planning in your discovery requests.
• Be specific in your requests and analyze every word; the producing party will.
• Avoid “rolling productions” having no identifiable relationship to your requests.
• Carefully and fully review any production to verify they comply with your requests.
• Require the producing party to specifically identify each production with your requests.
• Educate the court specifically why the responses are not responsive to your requests.
• Be vigilant about objection logs.

In addition, to the extent possible, inject yourself into the methods to be used by the producing party to collect, cull and produce the discovery. In terms of honest cooperation, these processes should be transparent or at least translucent, without divulging privileges. With the continued encouragement of the court, predictive analytics have become the darling in discovery and that is fine, but predictive tools should be the very catalyst to cause courts to mandate as transparent a process as possible.  Here again, though, the rules were modified at Rule 26(b)(1) by removing the following language:

“…including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.”

After December 1, 2015 we will also have to deal with other new federal rules (absent action by Congress).   The new rules seem designed to provide producing parties yet more arguments for why they need not fully produce data and documents in their possession.

Carefully read the new rules and do not accept the producing party’s interpretation. For example, the drafters of the rules have moved the important part of the rule to the end in Rule 26(b)(1): “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Instead choosing to provide at least (6) additional objections to the producing party. Some have interpreted this change to mean that the rule has changed dramatically from when it included: “reasonably calculated to lead to the discovery of admissible evidence.” I do not believe you should need to be a lawyer to recognize that altering and moving the words really does not change their meaning.

In addition, the authors of the rules attempted to simply clarify proportionality, but many lawyers are hailing the change to be as more a prohibition than a clarification:

    (1)        Scope in General.  Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged 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. 

One would hope that the courts will not exclude discovery simply because the amount in controversy on the surface is argued to be out of proportion to the discovery requested. Discovery would still seem to be a search for data and documents, which may demonstrate larger than obvious damages in a case; including issues such as punitive damages. Until the discovery is permitted though, we may often not know what a just discovery process would have shown.