You are preparing to advocate a proportional approach to discovery in your case, including informed limits on the information that will be preserved, collected, reviewed and produced. But your opponent and the court are new to e-discovery in major litigation, and your opponent has resisted a meaningful early discussion of the myriad issues “that deserve attention during the discovery planning stage” (including scope of preservation and discovery, sources of electronically stored information (ESI) that will and will not be searched, burden and cost, and procedures for asserting privilege claims). Fed. R. Civ. P. 26(f) advisory committee’s note (2006).
So where do you start? No reason to reinvent the wheel. Crack open your copy of the Federal Rules of Civil Procedure and review, in order, Rules 1, 26, and 37, as well as the advisory committee notes to those rules.
Rule 1 states that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” In Rule 26(a)(1) disclosures, a party must describe by category and location all electronically stored information in the party’s possession, custody or control “that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” Rule 26(f) mandates that the parties confer and discuss “any issues about preserving discoverable information; and develop a proposed discovery plan” that indicates the “parties’ views and proposals” concerning, inter alia, issues relating to the disclosure or discovery of ESI, form of production and assertions of privilege.
Rule 26(g) gives teeth to the process, requiring certification, based on a reasonable inquiry, that Rule 26(a) disclosures were complete and that discovery requests, responses and objections are proper, necessary and reasonable given the law, nature and stage of the case. And Rule 37(f) authorizes sanctions for failure to make disclosures or cooperate in discovery, including for failing “to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f).”
But don’t stop with the rules. Direct the court and your opponent to The Sedona Conference Cooperation Proclamation, the list of judges who have endorsed it and the cases that invoke it (or apply its principles). Review the Commentary on Proportionality and other thought pieces on advocating proportionality. Armed with this support, you will have a strong foundation to argue that:
- discovery should not occur until the parties actively participate in good faith in the Rule 26(f) process and develop and submit a proposed discovery plan;
- certain issues must be resolved before discovery begins including what will be preserved, what will be searched, whether and how keywords will be used to screen ESI for relevant information, how privilege claims will be asserted both before and after disclosure, and what format(s) will be used for production; and
- discovery request that are “ancient boilerplate – designed for discovery in a paper universe” should be tailored to the realities of electronic communications and what is actually at stake in particular litigation.
Despite the language of the federal rules, many litigants are still content to avoid these questions early in litigation. But judges are increasingly directing parties to answer these questions where they have not. You need not look hard to draw on the experiences and words of judges who have faced the unsavory and unwanted task of resolving disputes that would not have occurred had there been cooperation. Start with Mancia v. Mayflower Textile Servs. Co. and the many other cases that have followed.