On December 1, 2015, a number of amendments were made to the Federal Rules of Civil Procedure, creating a whirlwind of change for veteran and novice legal professionals alike.
Jason R. Baron, a member of the information governance and eDiscovery practice at Drinker Biddle, conveys that the drivers for the amendments are primarily “concerns about litigation taking too long and costing too much” in his feature article on Legaltech News.
Baron spends significant time explaining that the explicit use of the word proportional is key. He suggested that the rule uses the word “proportional” to urge judges to consider the following six factors when determining whether discovery has been proportional to the case:
- the importance of 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 issues, and
- whether the burden and/or expense of the proposed discovery outweighs its benefit.
However, despite the best intentions of the Advisory Committee, for the amendments to Rule 26 to be truly beneficial, one has to assume that at least a portion of the data is easily retrievable. Yet, many who work in eDiscovery can attest that this rarely happens.
Over the last decade, organizations have increased their stockpiles of data. To manage that data in e-discovery, Baron noted that “[i]ncreasingly, larger corporate entities are turning to advanced search software in lieu of manual or keyword searching, to cut down on the time and resources that traditional labor-intensive document review entails.” While these tools may afford parties better and sometimes quicker access to their data, just by nature of the medium, they may still collect terabytes upon terabytes of data that require review.
The amendments to Rule 26 with regard to proportionality should limit the amount of data collected and encourage better information governance. To that end, Baron believes that “[t]aken together, revised Rules 26 and 37(e) should act as a wake-up call that greater attention be paid to issues within the scope of practicing good information governance.”
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