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Emails, documents, spreadsheets, presentations, voice mail, text messages, social media posts. When civil litigation matters and internal investigations strike, all of these data types are ripe for discovery.
How is ediscovery evolving in 2017?
If you are regularly involved in the exchange of electronic documents in discovery – ediscovery – then you know that the legal landscape in this area is in a constant state of flux. For example, in December 2015, the Federal Rules of Civil Procedure (FRCP) were amended, impacting the scope of discovery, timing of discovery requests, and availability of sanctions for data preservation mishaps, among other things. Furthermore, throughout 2016, judges issued notable ediscovery opinions, interpreting the new FRCP provisions.
If you are new to these important rules changes and the corresponding case law, 2017 is the ideal time to get up to speed.
Asking for documents? Don’t cite the old standard.
Amendments to Rule 26(b)(1) caused a stir when it was revealed that the long-standing “discovery appears reasonably calculated to lead to the discovery of admissible evidence” language was being removed. Instead, the new Rule 26(b)(1) is commanded by proportionality and its set of factors. These factors require parties to take into account such things as “the amount in controversy,” “the parties’ resources,” and “the importance of the issues at stake in the action.” At its core, proportionality is a balancing test, ensuring parties receive the information they need to plead their claims, argue their defenses, and to curtail expensive and time-consuming waste. In 2017, it is critical that litigators realize that the rules have changed and to adapt their discovery strategies accordingly.
Look for intent when dealing with deleted documents.
With an average litigation matter often involving thousands (or even millions) of documents, it is no secret that data preservation is one of the thorniest issues in e-discovery. How does an organization and its counsel ensure that all relevant documents are protected? Changes to Rule 37(e) were designed to reset the preservation duty by allowing courts to use good faith, intent, and reasonableness when determining if a party should be sanctioned for destroying digital evidence. However, “proper preservation” is still a blurry line, often dependent upon a myriad of case-specific facts, and in 2016 many judges delved into whether a party’s conduct was sufficient under Rule 37(e) to levy sanctions. There will be a steady stream of cases in 2017 addressing reasonable steps to preserve, intent to deprive another party of relevant data, and the inherent power of the court to administer sanctions when data is lost.
Looking for more?
In 2017, the expectation will be even higher for counsel to have adopted and be proficient with FRCP rules and case law. If you are interested in learning more, check out “Top E-discovery Cases of 2016,” a new guide that reviews significant e-discovery cases in the last year and will help prepare you for the year to come.
Michele C.S. Lange, Esq. is the director of thought leadership and industry relations for Kroll Ontrack, an LDiscovery Company. www.ediscovery.com