Coming Changes to the Federal Rules of Civil Procedure (FRCP)

Here is the first of my series of posts on the impact that coming changes to the Federal Rules of Civil Procedure (FRCP) will have upon organizational information governance

smallPart 1: Rule 26 and Proportionality
If you have been following the blog, you may have noticed our repeated reference to what we call Proactive Information Governance as a new imperative in Information Technology. Sadly, Proactive Information Governance abbreviates to ‘PIG,’ and yet it is the “other white meat” of the eDiscovery industry; a tastier, healthier alternative to the same old eDiscovery dish of archive and search. By leveraging the technologies and techniques coming out of the Big Data world and applying these to the issue of information management, HP is delivering an entirely different approach to corporate governance; one that simultaneously reduces costs, facilitates compliance and reduces risk. Proactive information governance provides the ability to know what you have, where you have it, what is responsive, and what should be privileged. This management of data is provided in real-time and according to rules that are applied through automation and hence less prone to the variability inherent in human review.
The Federal Rules of Civil Procedure and eDiscovery
The Federal Rules of Civil Procedure (FRCP) are the collection of rules for how attorneys must litigate their cases before the courts of the federal government. Background on the FRCP is available here. Amongst the topics addressed in the FRCP is what constitutes evidence, what must opposing counsel produce upon demand, and a range of process and procedural requirements that must be met during litigation. In 2006 the FRCP was amended to address how electronically stored information (ESI) was to be managed as evidence. The bulk of this ESI was and is email, and the courts wanted specific guidance as to how ESI was to be managed. The rules laid down in 2006 embraced the idea that the cost associated with producing and delivering electronic information was largely irrelevant; if you had it, you had to produce it, cost be damned. This was a fine approach in the early 2000’s, where a terabyte of data was an astonishing amount of information, and a trillion emails were nearly inconceivable. Flash forward to 2014, and most of us as individuals have many terabytes of personal data, and a quadrillion-email-corporate-archive is ho-hum. Searching for a responsive email in a quadrillion emails is no small feat, and organizations are challenged to be aware of everything that is going on in their information systems at the same time that they are being held to the standard of being ever-aware, even omniscient. Proportionality in the FRCP One of the rules of the FRCP, Rule 26, discusses the issue of proportionality in making discovery requests. Background on this topic is available here. The Subcommittee that is reviewing and amending the FRCP as of 2015 now recommends that Rule 26(b)(1) be worded to permit a party to “obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense… and proportional to the needs of the case, considering the importance of the 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 the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. (new material in italics) Implications of Proportionality Change With this change in language, the old tactic of using excessive, and expensive, discovery to drive the opposition into settling may be coming to an end. Going forward, litigants who have effective control of their information assets can press their case(s) on the merits, rather than settling based upon affordability. However, the language also supports the needs of requestors, in that it provides that a producing party may not rest on mere allegations of undue costs, and “would be required to come forward with sufficient facts (rather than boilerplate or conclusory assertions) to show that the requested discovery violates the proportionality test.” Proportionality and Information Governance: What it Means to You 1. Proactive Information Governance dramatically impacts the proportionality equation Cost now matters. If you can find, produce and deliver discoverable material quickly and cheaply, your proportionality threshold is lower.
2. The party who more effectively manages its archive(s) will have lower costs Simply knowing what you have, what you must keep, and what you can delete lowers your operating costs, as well as your cost of compliance with discovery requests. This lower cost directly impacts proportionality and is fundamental to the equation.
3. The party with better infrastructure and processes has an advantage As a plaintiff, you can demand more from opposing counsel without appearing to be unreasonable, and their potential claims of your being unreasonable carry far less weight. If you can produce responsive data immediately, at very little cost, why can’t they? As a defendant, being able to meet opposing counsel’s discovery requests quickly, even effortlessly, may make them think twice about how well-prepared you are to defend your case, how much better organized and in control of your information you may be, and how less likely you may be to settle the dispute given your lower cost of defense. In either case, effective information governance can give you a clear advantage at the negotiating table and in the courtroom.
4. Don’t Allege, Prove This new language means that you need transparency in your processes and tools. When presenting to the court your proportionality claims you will need to prove the burden, not make mere assertions. Through proactive Information Governance your organization can provide convincing evidence of your cost to produce, giving counsel confidence in the arguments they place before the court.
5. Late Adopters Face Greater Risk In the decade following the ESI amendments to the FRCP, “Too costly, too complicated, too difficult” was a favored argument against responsiveness. It was as if being out of control was itself a defense, or at least a reasonable excuse for non-compliance. Going forward, as more and more organizations embrace proactive governance this argument may begin to sound more like an admission of guilt; or at least willful negligence. HP Autonomy has extensive experience in delivering world-class eDiscovery and Proactive Information Governance solutions for organizations of any size and budget. If you are interested in putting these advantages to work for you, contact HP today to learn more about Proactive Information Governance. #HPIGB Read more from this product expert: Analytics for Human Information: Winning Fans’ Hearts, Minds, and Dollars, Lap After Lap Analytics for Human Information: HP’s HAVEn – Delivering Operational Omniscience through Big Data Analytics for Human Information: The New Top 10 Myths of Big Data – Myth #9


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