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The Psychology of Law and Discovery
By Ralph Losey, e-Discovery Team
Reasonability is a core concept in the law, right up there with the idea of justice itself. It not only permeates negligence law, it underlies discovery law as well. For instance, a party in litigation, and the attorneys representing them, are required to make reasonable efforts to find relevant documents requested. They are required to make efforts that are good enough to be considered reasonable. But lawyers and litigants are not required to make efforts beyond that: not required to make super-human, stellar efforts, and certainly not perfect efforts.
Conversely, litigants and their lawyers are not permitted to make anything less than reasonable efforts to find the information requested. They are not permitted to make sub-standard, negligent efforts, and certainly not grossly negligent efforts. Let us not even talk about intentionally obstructive or defiant efforts. The difference between best practice and malpractice is where the red line of unreasonable negligence is drawn. Read Full Article >>
Assessing the Impact of the Newly Proposed Amendments to the Federal Rules of Civil Procedure on the Discovery Process
By Philip Favro, Senior Discovery Counsel, Recommind, Inc.
This will probably sound familiar. Changes are in the works for the rules governing the discovery process that will make discovery more efficient and less costly. Once these changes are in place, matters can finally be litigated on the merits instead of in costly discovery satellite litigation.
This preamble might seem like a repeat of the 2006 amendments to the Federal Rules of Civil Procedure (Federal Rules or Rules). Instead, it describes a new package of proposed amendments to the Rules. Approved for public comment in June 2013 by the Standing Committee on Rules of Practice and Procedure, the draft amendments are generally designed to streamline the federal discovery process, encourage cooperative advocacy among litigants, and eliminate gamesmanship. The Civil Rules Advisory Committee (Committee), which drafted the amendments, has also tried to tackle the continuing problems associated with the preservation of electronically stored information (ESI). As a result of its efforts, the Committee has produced a package of amendments that affects most aspects of federal discovery practice.
In this article, I provide a comprehensive overview of the newly proposed amendments. This includes the changes that are designed to usher in a new era of cooperation, proportionality, and active judicial case management in discovery. I also review the Committee’s re-write of Federal Rule 37(e) and its attempt to create a uniform national standard for discovery sanctions stemming from failures to preserve evidence. I conclude by describing the timeline for moving the amendment package forward. Read Full Article >>