Here is the second installment of insights I gleaned from the ABA National Institute on E-Discovery:
- Federal Rules Amendment Process: Judge Koeltl of the Southern District of New York led a panel that provided a thorough update on potential amendments to the Federal Rules of Civil Procedure. Consideration is being given to making the proportionality requirement of rule 26(b)(2)(c)(iii) more prominent. Judge Koeltl noted that in his view lawyers are not focusing on that as much as they could be and he tends to raise that rule more than the lawyers practicing before him do. It is a strong tool for judges to limit the scope of discovery where the burden and expense outweighs its benefit. Also under consideration are proposals to shorten the time to serve a summons and complaint, limit depositions to 5 per side and to 4 hours instead of 7 hours, limit interrogatories to 15, limit requests for production to 25, and limit requests for admission to 25 except for admissions with respect to the genuineness of documents. (Judges would retain discretion to modify these limits where necessary and appropriate.) In my view, requiring both sides to employ more limited, focused discovery instead of the “uncover everything” mindset that some lawyers (and clients) have is probably the only way to significantly restrain litigation costs and allow more cases to be tried. But it requires a real culture change among many civil litigators. Another rule change under consideration would amend Rule 34 to require that responses to requests for production be made with more specificity and prohibit evasive responses. Other proposals include a requirement that the parties discuss and agree on the scope of preservation of documents at the outset of a case, and a formal requirement in Rule 1 that counsel cooperate with each other. Also under consideration is a change to Rule 37 that would prohibit sanctions for a failure to preserve evidence (except in exceptional circumstances) unless a failure to preserve evidence was willful or in bad faith and caused prejudice.
- Predictive Coding: As explained in my March 9, 2012 blog post, new software is now enabling computers to cull through a set of electronic documents and, based on an experienced lawyer’s review of a sample of documents, the computer will make determinations on whether documents in the remainder of the set are likely to be responsive or non-responsive. The consensus of a panel of lawyers who have used this software is that it works well, what the computer does is really quite similar to what a team of junior or contract lawyers attempts to do, and studies consistently have shown that the computer review is more accurate than human eyes. The consensus seemed to be that this is the wave of the future, will bring substantial cost savings to complex litigation, and lawyers and judges should get comfortable with it. There was also some interesting discussion about whether the opposing party needs to be provided with more access to information regarding this type of review (e.g., being provided with a sample of “nonresponsive” documents) that is not provided when lawyers are performing the same type of work that the computer will do.