No matter how long you’ve been practicing, sit down and read the rules on electronic discovery, comments included.
Few lawyers and legal professionals are aware of the gold nuggets of guidance on the discovery of electronically stored information (ESI) contained right in the comments to the amended rules governing discovery.
When the Federal Judicial Conference drafted both the amendments to the Federal Rules of Civil Procedure that became effective in 2006 and 2015, they included lengthy explanations of the reasoning behind the changes in the comments to each rule. If you aren’t familiar with them, you need to be. They create a roadmap for walking through the discovery process with ESI and provide guidance to the courts on how to interpret the amended language. The comments also lay out the intent behind the amendments so that courts can meet that intent with their applications of the rules to a specific set of facts in a matter.
As litigators, we look at the rules when we need guidance on a specific issue or want to confirm what we already know. But if your legal education was anything like mine, once you learned the Federal Rules of Civil Procedure briefly in Civ Pro, you revisited only those rules that impacted the subject matter you were studying for the rest of law school. There was no in-depth discussion of rules, how to use them, what they cover, and what they don’t (which is perhaps more important).
Then you went into practice, and you learned to practice in the trial-by-fire method. Here’s a case, go figure it out, follow what the other attorneys do. No one walked you through the rules (although that partner didn’t smile when she said, “go look at the rules”). If you were one of the young associates who sat down and read the rules, good for you. Most of us didn’t until we had to, and you never really understand what they meant and why they were there until you had worked through a few cases using them.
I’m telling you now — no matter how long you’ve been practicing — to sit down and read the rules on electronic discovery and the comments to the rules.
There are fifteen rules that you need to read (see the list of FRCP below). Reviewing them and the comments on ediscovery will probably take you about an hour or so. That hour will save you tens of hours later and give you more insight into strategies you can use in discovery. And it will save your clients money, because you’ll know how to advise them on what they need to do at the outset of litigation, and how to save money by using proportionality and sampling (see Rule 34 comments).
The best ediscovery lawyers know the rules cold.
The best way to encourage you to read the rules is to tell you what happens when you don’t — when, instead, you rely on what others in your firm have taught you or what they have always done. For that, I give you Judge Mark W. Bennett’s recent decision in Liguria Foods, Inc. v. Griffith Laboratories, Inc., Case No. C 14-3041-MWB (N.D. Iowa 2017).
By way of background, the language of FRCP 34(b)(2)(B) was amended effective December 1, 2015, to provide that the responding party must “state with specificity the grounds for objecting to the request, including the reasons” and that “[t]he production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” Rule 26 contains similar language on the scope of requests. And while those Amendments further articulated against the use of boilerplate objections, it has been the law for quite some time, as Judge Bennett points out.
Courts across the country have read this language to state that lawyers’ blanket objections included in their written discovery requests are invalid and against the rules, and have taken lawyers to task. But when Judge Bennett was confronted with the issue in Liguria, he took substantial issue with the practice:
“This litigation is about who is responsible for tons and millions of dollars’ worth of sausage, of the peperoni variety, some of which turned rancid. It’s also about lawyers who were not concerned about how the federal discovery rules were made, but how and why they flaunted them. This ruling involves one of the least favorite tasks of federal trial and appellate judges—determining whether counsel and/or the parties should be sanctioned for discovery abuses. This case squarely presents the issue of why excellent, thoughtful, highly professional, and exceptionally civil and courteous lawyers are addicted to “boilerplate” discovery objections. More importantly, why does this widespread addiction continue to plague the litigation industry when counsel were unable to cite a single reported or non-reported judicial decision or rule of civil procedure from any jurisdiction in the United States, state or federal, that authorizes, condones, or approves of this practice?
. . .
Unfortunately, experience has taught me that attorneys do not know or pay little attention to the discovery rules in the Federal Rules of Civil Procedure.”
Judge Bennett then required the parties to file all of their written discovery requests, and he created a list of the boilerplate objections used by counsel and the rules which they violated and ordered not one party, but both parties, to show cause as to why they should not be sanctioned. Some of these he included on the list may be familiar to you:
- “to the extent they seek to impose obligations on it beyond those imposted by the Federal Rules of Civil Procedure * * or any other applicable rules or laws”
- “to the extent they call for documents protected by the attorney-client privilege, the work product rule, or any other applicable privilege”
- “to the extent they seek the disclosure of trade secrets, or confidential or proprietary information without the entry of an appropriate protective order”
- “to the time period defined in the Document Requests and Interrogatories as overbroad and not reasonably calculated to lead to the discovery of admissible evidence”
Judge Bennett lays out an analysis of Rules 26, 33 and 34 in a way that is a must-read for all lawyers managing or playing a role in discovery, and comes to the following conclusion:
“I now find, without doubt or hesitation, that the discovery responses by the parties in this case that I identified as potentially abusive and/or not in compliance with the applicable rules, but mere “boilerplate” objections, are just that. I am not convinced that the possible exceptions to the “boilerplate” objections that I noted in two of Liguria’s responses or the three additional responses that Liguria now cites are sufficient to “show specifically how . . . each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive.” St. Paul Reins. Co., Ltd., 198 F.R.D. at 511-12. Even if I accepted all five of the responses that Liguria has identified as adequate, there are certainly plenty of others that are not.”
Nevertheless, as a result of both the parties’ cooperation in the litigation, their willingness to acknowledge the issue, and their agreement to act as ambassadors at their firms for change in the practice of using boilerplate objections, the court declined to enter sanctions.
Best not to try your luck with this opinion sitting out there.
If I’ve convinced you even a little bit, here’s a list with links to review the current rules on ediscovery in their entirety, together with the comments. And make sure to forward this article to the litigators in your group — it’s time to be the ambassador for your firm to start ridding the practice of this costly, obfuscating technique that has no legal value. And to know the rules across the board.
- FRCP Rule 1
- FRCP Rule 4
- FRCP Rule 16
- FRCP Rule 26
- FRCP Rule 30
- FRCP Rule 31
- FRCP Rule 33
- FRCP Rule 34
- FRCP Rule 37
- FRCP Rule 45
- FRE 502
- FRE 901
- FRE 902
- 28 U.S.C. § 1920
Happy reading. We’ll talk more about other rule changes that you can use to manage your discovery process more effectively. In the meantime, let me know what vexes you in ediscovery and what you are seeing that can help the collective masses.
This article first appeared on Above the Law.