At Exterro’s inFusion conference, three judges discussed how legal teams can keep up with FRCP requirements in an increasingly complex digital world.
Ever since the 2015 amendments to the Federal Rules of Civil Procedure (FRCP), federal judges have been pushing attorneys to be more cognizant of their proportionality and preservation responsibilities in e-discovery. But while there has been some success in attorneys adapting to a new e-discovery landscape, many still believe there is much ground left to cover.
At inFusion 2017’s “State of E-Discovery: A Candid E-Discovery Conversation between 3 Judges” session, three federal judges offered advice on how legal teams can best adhere to new e-discovery expectations. The panelists were retired Magistrate Judge Frank Maas, Magistrate Judge Andrew Peck of the Southern District of New York, and District Judge Xaiver Rodriguez of the Western District of Texas. Here are some of their tips:
1. Be Mindful of New Data Types
“There is always a cutting-edge technology in terms of communication” that poses problems for e-discovery practitioners, Judge Maas said. “Back in the ‘90s it was email, now it’s text messaging and other media like that. There is the problem that corporations by and large don’t know where their data is, who is keeping it, or where it is kept.”
Rodriguez agreed, specifically singling out text messages as a “real challenge” and the “latest obstacle” facing e-discovery. Given the amount of remote workers in the economy, he added, it is often the case that managers and their employees will communicate through text messages that “bypass all a company’s [communication] systems,” of which they have oversight.
While the judges advised that e-discovery practitioners should be implementing processes to capture such text communications, they also offered some leeway for clients who are unable to collect relevant data because of technology, cost or workflow limitations.
“I have had more than one attorney say to me, we don’t preserve the [text messages],” Maas said. “That is fine, so long as you have an agreement with the other side that they are not going to produce” text messages either.
2. Communicate with Your Outside Counsel
Judges, however, expect attorneys to know the limits of their clients’ production abilities, and what is reasonable to produce in today’s industry.
“Outside counsel has to be knowledgeable about what can or can’t be done,” said Judge Peck. He later added, “There is nothing worse, since it is usually the outside counsel that appears in front of us making some presentation in the court about what [their client] company has done or will do, and it turns out to not be entirely accurate.”
Judge Peck added that the onus is on lawyers and judges alike to know what type of digital content can currently be reasonably produced, so they can push back on parties’ claims that certain productions are too expensive or complex to undertake.
3. Document Everything
The 2015 FRCP amendments strengthened proportionality arguments in production and preservation, giving corporations more leeway in deleting data in-house. But Judge Rodriguez explained that though corporations can erase data with more confidence, they are still “going to have to be able to demonstrate later down the road why you aren’t keeping this stuff.”
He advised legal teams to document the reasons that in-house data not governed any business, regulation, or litigation demands was erased.
And such reasons can be entirely business-driven, Judge Maas said. “If you’re in good faith, exercising business judgement and making a cost benefit analysis… I think that is something most judges expect.
Still, Judge Rodriguez noted that such documented reasons for erasing data will likely be heavily scrutinized. He advised corporate teams to “loop back in with outside counsel to get their opinion,” when erasing in-house data.
4. Obtain Federal Rules of Evidence 502(d) Orders
For Judge Peck, one of the least understood or used protections afforded to e-discovery practitioners is Federal Rule of Evidence 502(d) orders.
“Rule 502(d) says that if the court signs an order, production of privileged material in the litigation, whether inadvertent or not, is not a waiver of the attorney client or work product privilege,” he explained.
Peck noted that such a court order is a necessary safeguard for today’s e-discovery teams given the amount of information they produce. “I can virtually guarantee some privileged material will slip through.”
He added, “It is akin to malpractice if you’re the producing party and you have more than five documents to produce, to not consider or obtain a 502(d) order.”