News & Press: ACEDS News


Tuesday, November 24, 2015  
Posted by: Jason Krause
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Judge Paul Grimm has been at the epicenter of the ongoing evolution of eDiscovery for a long time. As a District Judge for the United States District Court for the District of Maryland, he has been the author of a handful of the most influential eDiscovery-related court opinions, including Victor Stanley, Inc. v. Creative Pipe Inc. (2008)Mancia v. Mayflower Textile Services Co. (2008), and Lorraine v. Markel (2007). More recently, he was a member of the Advisory Committee for the Federal Rules of Civil Procedure, working to rewrite the rules of electronic evidence in litigation.

As one of the keynote speakers at the ACEDS eDiscovery Conference earlier this year, Judge Grimm drew on all of this experience to thrill the audience with an insider’s perspective on the evolution of the law. Below is Part 1 of a new conversation with Judge Grimm about how the rule changes came about, what they mean, and how to use the new rules to your advantage. He notes that the opinions he expresses are his own personal comments and not on behalf of the rules committee, where he had the privilege of serving for six years.

One of the things the new amendments to federal rules emphasizes is proportionality. Why is proportionality so controversial and why didn’t the existing proportionality rules work? 

The proportionality requirement has been part of the rules of civil procedure since 1983, when it first came in as part of the scope of discovery. Of course, back then the word proportional was not specifically used, but there was a balancing test that said the judge was to modify, restrict, or curtail discovery while considering a series of cost benefit factors. So there was a cost-benefit analysis, where the focus was the value of the information versus the cost to the producing party. The shorthand phrase is what we call proportionality.

Ten years later, in 1993, the Civil Justice Reform Act is coming in, and the whole concern about the expense and burden of litigation has not gone away. But the proportionality rules get moved into parts of Rule 26 so that they can fit in other things, and it now becomes divorced from the scope of discovery. The advisory notes talk again about the need for judges to use the proportionality analysis and talks about the fact that they’re not enforcing the rule as hoped. And then you have more changes in 2000 and 2006 with the ESI rules and at each step you have the same lament, that we’ve been ignoring proportionality.

And all of this kind of  came to a head within the advisory committee and at  the conference in 2010 at Duke law school. It was just obvious that in too many cases discovery took too long, cost too much, and was too burdensome and cumbersome compared to the what was at stake in litigation. So in the new (Federal Rules of Civil Procedure) going into effect December 1, we worked hard to push through changes to help promote the notion of proportionality.

At the eDiscovery Conference, you said you have surveyed federal judges about this issue. What did you learn? 

I became fascinated with these issues in my role in the committee and I looked at this concept because it seemed to be central to what the rules wanted to achieve but had been unsuccessful in doing. So I started off with looking at the notion of what can be done- if it is possible at all. I wanted to know if maybe we have an aspirational goal that cannot be met.

I got some help from some people who can do searches better than I can do and we designed a search that could find cases that referred to the proportionality rule by rule name, by rule number, and words and phrases that captured the concept- like “cost benefit balancing” and “proportional.” We analyzed every single one since 1990 when the proportionality rule came into effect through the present. And I found that there was a rich array, more than 15, almost 17 techniques, some of which are used alone, some that are used in combination with other techniques, some of which are more effective than others, which judges use when they are solving a problem involving discovery and the challenges raised with proportionality. My conclusion based on this research is that yes, it is very possible to reach proportionality in discovery because it is being done by judges who acknowledge their obligation to do so.

If it can be done, why isn’t it happening?

There’s lots of different reasons. I surveyed 110 judges, which is less than 10 percent of the federal judiciary, so its not representative. But it tells you exactly what some judges are thinking and it is better than anecdotal. Among the questions, one was designed to tease out attitudes among judges towards how do you get proportionality.

We know that lawyers think the process is better, faster, and fairer when judges engaged in active case management. So the result that was most significant was that many judges said that they sometimes or often considered proportionality in discovery resolution. But when asked to characterize their management of the case- whether they actively managed or waited until there was a discovery dispute before they got involved, over 80 percent of the District Judges said they wait until it is in dispute, as opposed to jumping in at the very beginning. That is significant to me because it says that the judges who are responsible for the ultimate successful resolution of the case view themselves not as case managers but as dispute deciders.

So what is going on? 

That says to me it’s not hostility to the process or not wanting to do their job- the judges I know want to do the best job they can. I don’t know any judges sitting around with their feet on their desk saying they don’t have enough to do. I came to the ultimate conclusion that it is primarily a training and education issue- educating the judiciary and empowering lawyers to get involved in the beginning of a case to say, “judge we would like help to make the process effective and fair.” The controversy is that some people were concerned that by putting proportionality back in the scope of discovery where it originally was, that it would somehow foster another round of obstructionist boilerplate objections.

So how do litigants get judges more involved without complicating the process? 

The advisory notes make it clear that boilerplate objections are not sufficient and that the proportionality rule is designed so that people get to discovery who need to prosecute claims and defenses, not to shut people out of being able to get what they need. If a party says discovery is disproportionate, they need to come up with the data and specific information to show it so that the judge can look at it and say, “Okay, how are we going to solve this so that we can give the requesting party what they need but not overly burden the producing party?”

But how does increasing judicial input help fix discovery?

Rule 26 says to the lawyers that they have to meet and confer before the discovery process comes to the judge. Now, the Rule 16 changes are going to encourage face-to-face, person to person conferences. It can be done by phone, it can be done by video conference, it can be done fact-to-face, but the underlying and animating hope is that judges will talk to the parties in setting the schedule so that they have some idea about the time it is going to take, the importance to discovery, the sequence in which it is going to happen, the facts that will be important to the case, and where they should focus. Most judges I know can resolve a discovery dispute with a 15 minute face to face meeting or phone call.

So a conference call can head off months of motion practice?

Absolutely. What I tell judges is, “what would you rather do? Spend weeks dealing with back and forth between the parties, or have a 15 minute phone call while your schedule still has some realistic flexibility?” Which is easier for you to keep the case on track? The rules are all designed to get the parties talking early and to develop a dialog and a relationship to resolve things quickly and to keep the process moving for the benefits of the conference.

At the eDiscovery Conference you said that lawyers never read all of Rule 26. I think you called it the “Yadda Yadda Rule.” The rule is just so long that no one really understands or uses all of the provisions in there. Will things be simpler and easier to understand now? 

You can’t change people’s behavior simply by having a rule change. You have to follow it up with education. There is a real concerted effort to encourage education for the lawyers, judges, and the bar. If you have a concept like proportionality, it can be hard to apply. But if you have 15 tools to achieve it, and you work through hypotheticals based on real world problems, then you can say “Okay, I’ve got it.” That’s the level of educational awareness we want to have and that’s what we think will be different this time around. There was a tremendous number of lawyers, academics, and judges involved and now are looking for ways to do better. We are hopeful. These follow on activities we hope will be the difference.

NEXT WEEK: Part 2. Should Judges use carrots or sticks to get parties to cooperate? 


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