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THE COMING RULES CHANGES: WHAT FEDERAL JUDGES THINK

Friday, October 16, 2015  
Posted by: David Chung
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You’ve heard a lot of hype about the impending rule changes to the Federal Rules of Civil Procedure. The latest eDiscovery amendments to the Federal Rules of Civil Procedure have been hammered out over the past five years and will soon introduce new standards regarding eDiscovery sanctions, proportionality, and cooperation in discovery. To find out how the rule changes will affect litigation, ACEDS brought together five prominent federal judges at the 2015 eDiscovery Conference and let them explain the implications.

The Judges included Paul Grimm, United States District Judge for the United States District Court for the District of Maryland, Xavier Rodriguez of the United States District Court for the Western District of Texas, Thomas Vanaskie, circuit judge on the United States Court of Appeals for the Third Circuit, David Waxse, recently retired from the District of Kansas, and retired federal judge and special master Richard Levie.

These are all savvy eDiscovery judges who have authored some of the most influential decisions in the field. In addition to interpreting the new rules, they offered some pointed advice to help goad attorneys into keeping the time and expense spent on discovery to a minimum. These included threatening to film discovery conferences between parties, or forcing parties to accept uncomfortable compromises when they can’t come to agreement. But the most important point they found is that judges and lawyers will have new tools to help move the discovery process along and keep costs in control.

Meetings Are More Important Than Ever

Led by moderator Helen Bergman-Moure of Lex Aperta, the first impending rule change considered was FRCP 26(b)(1), regarding proportionality and the scope of discovery. This Amendment restores proportionality factors to the portion of the rule that defines the scope of discovery, and aims to promote dialogue between parties and, if necessary, the court concerning the amount of discovery reasonably necessary to resolve the case fairly.

For the federal judges, one important question was simply to understand why proportionality is a problem in the first place. “The question is always why judges aren’t doing what the rule requires,” asked Judge Waxse. “But when you consider the factors in determining proportionality, it’s almost impossible.”

The factors Waxse alluded to is the simple fact that early in a case it is impossible to know all of the issues and true costs of a matter, making it impossible to know what cost is proportional to the potential value of a case. Or as Waxse answered his own question, “My answer because is because it’s almost impossible to know the amount in controversy. There are very few cases where the parties are in agreement about the amount in controversy… in fact there is often wide disagreement, one party says $10 million, the other says it is a no-liability case. How do you use that to factor in a proportionality determination?”

Because of this conflict, there have harsh complaints from both the plaintiffs and defense bar regarding the new rule. However, in at least on judge’s mind this may be a sign the rule may in fact be the right approach. “This is a compromise product,” says Rodriguez. “The answer to your question of did it go far enough? The obviously the answer is no. Both sides are not happy, but perhaps that’s a sign we are where we need to be.”

A Grimm Reminder

Judge Paul Grimm, who is a member of the Advisory Committee for the Federal Rules of Civil Procedure, joined the conversation to remind the attorneys and lawyers in attendance that for the new rules to work, parties must educate themselves about the implications. “There’s a structural component with the rules. Rule 26 may be the longest single rule- it goes on for pages,” he said. “My non-scientific theory is the yadda yadda yadda principle. Most people start reading the rules and just go, yadda, yadda, yadda.”

To address this failing, Grim says the rules have made certain aspects of the discovery process to help ensure parties do not overlook important duties. For example, Rule 34 now forces parties to agree to specific dates in returning a response to prevent game playing and to force parties to keep to a schedule. “Litigants get into the tennis game mode where one party serves a complaint and don’t do anything until someone gets back to them with a response,” he said. “The rules give us the authority to direct the parties.”

How Much Will It Hurt?

Of course, the issue lawyers really want to hear from judges is regarding sanctions. FRCP 37(e) allows sanctions for failure to preserve ESI, but limits sanctions for failure to preserve so that negligence, even gross negligence, will not be sufficient for imposition of most severe penalties. In this discussion, the judges took it upon themselves to suggest that active case management is necessary to guide parties and prevent sanctions.

Active case management became the buzzword of the event as it is clear that even with rule changes, savvy judges will be necessary to head off discovery disputes. “We will never have a computer program that fits all cases,” says Grimm. “The rules should not make bold leaps forward. The law is an incremental thing.”

While the judges agreed that the rules fix some nagging problems and give them more leeway to help parties solve disputes early, the bottom line is that it will take time to learn how effective the rule changes will be. In fact, all five panelists agreed that education for judges as well as lawyers will continue to be essential. “This has got to be followed on by education with the judges’ education at the bar,” said Rodrigues. “Too often judges believe it’s their job to sit and wait for a blowup and then they jump in and do something about it. They need to know how to head off disputes early.”

Of course, that goes for lawyers as well. The judges made it clear that the new rules make it possible for judges to settle disputes with pre-trial hearings and teleconferences with parties whenever necessary and that no judge should allow foot dragging or game-playing among parties during discovery. “Lawyers don’t like being called to the principal’s office,” said Levie. “Any time there is a major dispute after the meet and confer, I would tell the parties, everything you’re doing now should have been done at the meet and confer, so go back and do it again.”


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