Preservation and proportionality on the agenda for US litigation

There is a lot going on in the eDiscovery / eDisclosure world at the moment, what with new Civil Procedure Rules in England and Wales, and with products, appointments and webinars to write about and conferences to plan for.

There has also been a stream of interesting articles which are worth passing on. I would normally seek to add some value with commentary of my own rather than merely give you hyperlinks, but they come thick and fast, and it seems better to pass them your way whilst they are topical rather than wait for an opportunity to expand on them. Besides, the articles in question have plenty of meat of their own and I do you no great service by adding more.

The subject is pending revisions to the Federal Rules of Civil Procedure, a subject which I have already covered in an article called A new definition of relevance in US eDiscovery? which was itself based on an article by Ralph Losey called Georgetown Part 2: New Rules are Coming! There was a curious lull after that, with relatively few US commentators seizing on two points in particular which seemed to me of significance – the proposed express incorporation of proportionality into Rule 26(b)(1) and planned amendments to Rule 37(e) which aim to clarify the “safe harbor” from sanctions where documents are deleted as a result of a “routine, good faith operation” of computer systems.

The problem (or one of the problems) with these areas is the lack of precision implicit in both. Preservation decisions turn on the “reasonable anticipation” of litigation, and anything involving the word “reasonable” involves a degree of subjectivity. Where a client is contemplating a voluntary but irrevocable decision such as the deletion of data, the average lawyer will err on the side of caution in circumstances where severe sanctions may be invoked against the client.  The present wording of Rule 37(e) gives too much scope for “average” lawyers to take refuge in the safe course which urges clients to keep everything “just in case”. “Just in case of what?” the clients might ask. There are circumstances which will clearly warrant sanctions; there are those which equally clearly do not; there are grey areas. The lawyer’s job is to discriminate between them where too many simply give the risk-free advice to keep everything (and take a fee for giving it).

The concept of proportionality is similarly (and necessarily) open to different and partly subjective views. Lawyers, particularly US lawyers, like bright lines, and a concept which shifts with the circumstances is necessarily incapable of precise definition. There is no argument, however, that the costs of eDiscovery have become wholly disproportionate to the “just, speedy, and inexpensive determination of every action proceeding” objective of FRCP Rule 1. The present wording of Rule 26(b)(2)(c) already refers to the balance of burden and benefit. Some US judges get it – what US Magistrate Judge Andrew Peck said about proportionality in Da Silva Moore was much more important than the fight about predictive coding protocols which drowned it out, because those arguments are, or should be, circumscribed by wider considerations of proportionality.  The insertion into Rule 26(b)(2(c) of an express reference to discovery “proportional to the needs of the case” would be a good step in the right direction.

For whatever reason, the courts of England and Wales have less difficulty with both preservation duties and with proportionality, perhaps because we have generally been content to rely on common sense and judicial discretion rather than attempts at bright line definitions. That is not a claim to perfection, or anything like it, but it cuts against an aspiration to perfection which is both expensive and illusory.

That much said, let us turn to the articles which set my mind on these subjects. One is a magisterial piece by Robert Owen of Sutherland Asbill & Brennan LLP to which I have referred before and which is called Skating along the eDiscovery Cliff Will Newly Proposed Civil Rules Amendments Help to Refocus Litigation on the Merits? It covers the pending changes to Rule 37(e) and Bob Owen has the standing to influence, rather than merely report, developments of this kind.

Next, see an article called Do the Proposed FRCP Revisions Go Far Enough? by Rachel Teisch of Xerox Litigation Services which succinctly summarises the proposals, sounding a cautious note (as her article’s title implies) as to whether the proposals will adequately distinguish between inadvertent and good faith deletion on the one hand and sanctionable conduct on the other. If they fail to achieve that, the amendments will be useless.

Lastly, see an article called Would Rule Changes Alleviate eDiscovery Burdens? by Philip Favro of Symantec, which expands on the factors which a court will be able (and, in some cases, obliged) to consider when looking at the pre-litigation destruction of documents. On some of my panels last year, I took to asking judges from different jurisdictions  about the extent of their interest in document retention policies – something expressly referred to in our Practice Direction 31B. There were divergent views, but I see a trend in this direction. As judges start to weigh the factors which Phil Favro sets out in his article, so we should see a move away from unthinking retention of everything “just in case”.

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