For IP & Commercial Litigation MCLE Ethics 1/20/16. FRCP New 12/1/15 Changes Key ESI Ones. Robert D. Brownstone, Esq.

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1 For IP & Commercial Litigation MCLE Ethics 1/20/16 FRCP New 12/1/15 Changes Key ESI Ones THESE MATERIALS ARE MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF CURRENT LAW AND PRACTICES. THEY ARE NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL Robert D. Brownstone, Esq. 1

2 Agenda I. Ethical Duty of ediscovery Competence II. FRCP Changes Overview For each of III. thru V.... A. Current Status B. Mark-up(s) of New Rule(s) C. Possible Impacts 2

3 Agenda (c t d) III. Discovery Definition to Include Proportionality IV. Spoliation Sanctions [Amended FRCP 37(e)] V. VI. Efficiency/Timing Two Less-ESI-Centric Ones VII. CONCLUSION/Q-and-A 3

4 I. ediscovery Competence Ethics ABA Model Rule 1.1 comments re: keep abreast of changes... including... with relevant technology Cal. COPRAC, Formal Op. No (6/30/15) 3 options if lack ediscovery competence: 1) acquire learning/skill; 2) get technical consultant or competent counsel; or 3) decline case NYSBA Best Practices In E-Discovery In New York State and Federal Courts (July 2011) See generally Ettari & Hertz-Bunzl, Ethical E-Discovery: What Every Lawyer Needs to Know, ALM LTN (11/10/15) 4

5 I. edisco Competence Ethics.... (c t d) > 58 U.S. Dist. courts local rules Ex: N.D. Cal. Guidelines & related stipulation, checklist, etc. (11/27/12): Aggregated, summarized & linked here Especially these items at.pdf p. 4 here: Ethics -- ediscovery law & process familiarity: Judicial Expectation per Guideline 3.01 ediscovery liaison per Guideline

6 I. FRCP Changes Overview 12/1/06 First set of ESI FRCP amendments Goals: 9/19/08 reduce volumes, esp. re: not reasonably accessible ESI provide safe-harbor defense re: spoliation sanctions motion add procedure for attorney-client privilege & work-product claw-backs FRE 502 substantive claw-back rules 6/29/09 California ediscovery Act amended CCP & CRC 6

7 I. FRCP Changes Overview (c t d) 12/1/15 2 nd set of ESI FRCP amendments effective: color-coded mark-up of key changes clean version of rules set as sent to Congress by U.S. Sup. Ct. (4/29/15) full report with Advisory Committee Notes (5/1/14) Goals proportionality preservation/spoliation uniform national standard and easier defensibility efficiency/timing changes and collaboration/ cooperation re: case-management 7

8 III. Discovery Definition Includes Proportionality A. Prior Status FRCP 26(b)(1) re: scope of discovery: mash-up of two prior definitions reasonably calculated... relevant to any party s claim or defense... unlike UK approach, no specific mention of, or emphasis on, proportionality factors as to limits on scope buried in 26(b)(2)(C) (and in Adv. Comm. Note) 8

9 III. Definition/Scope Proportionality (c t d) B. Amended FRCP 26(b): Rule 26. Duty to Disclose; General Provisions [ ] Governing Discovery * * * * * (b) Discovery Scope and Limits. (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged 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. Information within this scope of discovery need not be admissible in evidence to be discoverable. 9

10 III(B). Proportionality (c t d) Amended FRCP 26(b) (c t d) including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). 10

11 III(B). Proportionality (c t d) New FRCP 1 Rule 1. Scope and Purpose These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. Committee Note Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way

12 III. Definition/Scope Proportionality (c t d) C. Possible Impacts [See A Positive Pessimist, Newsweek (6/12/05)] 1. Optimistic View FRCP 26 will help rein in fishing expedition Benefit if facile with all data w./in control Already been used in some decisions Samantha V. Ettari, Proportionality: The (Not So) New Kid on the Block, NYLJ (10/5/15), citing various decisions, including these three

13 III(C). Proportionality (c t d) Possible Impacts (c t d) 1. Optimistic View (c t d) Turner v. The Paul Revere Life Ins., 2015 WL , at *1 & n.2 (D. Nev. 8/28/15) Uppal v. Rosalind Franklin Univ. of Medicine and Science, F. Supp. 3d, 2015 WL , at *3, n. 5-6 (N.D. Ill. 8/26/15) Cohen v. Cohen, 2015 WL , *3 n.2 (S.D.N.Y. 6/29/15) 13

14 III(C). Proportionality (c t d) Possible Impacts (c t d) 1. Optimistic View (c t d) New 26(b) + new FRCP 37(e) [see below] = implicit adoption of Pippins v. KPMG, 279 F.R.D. 245, 255 (S.D.N.Y. 2/3/12) ( proportionality is necessarily a factor in determining a party s preservation obligations ) New FRCP 1 will foster collaboration and cooperation as to ESI & in general 14

15 III(C). Proportionality (c t d) Possible Impacts (c t d) 2. Pessimistic View In substance, this standard has existed for some time yet discovery still often weaponized Local court rules already have focused on same to no avail E.g., all through N.D. Cal. Guidelines & related docs. incl. Brownstone Slides, e.g., slides 3, 11 & 22 [.pdf pp. 14, 22 & 30] (1/16/13 & revised 10/29/15 15

16 III(C). Proportionality (c t d) Possible Impacts (c t d) 2. Pessimistic View (c t d) Will lead to more discovery about discovery disputes and motions Spend to show why shouldn t have to spend? Highly dependent still on judge... How will non-tech-savvy judges adjudicate proportionality disputes? You re a big company; just pay for it? 16

17 IV. Spoliation Sanctions [Amended FRCP 37(e)] A. Prior Status [preservation/spoliation/sanctions intro] A good faith loss of ESI due to a routine = a defense... and only to FRCP sanctions As to mental state (culpability), which is one of three elements of spoliation : common law differs by state (and by Circuit); 2 d Cir. = negligence can suffice severity of sanction varies nationwide and is quite discretionary 17

18 IV. Spoliation Sanctions (c t d) B. Amended FRCP 37(e): Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions * * * * * (e) Failure to Provide Preserve Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system. If [ESI] that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: 18

19 IV(B). Spoliation (c t d) Amended FRCP 37(e) (c t d) (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. * * * * * 19

20 IV(B). Spoliation (c t d) New FRCP 37(e) (c t d) Current 37(e) PLUS new Advisory Committee Note available at LII New Note makes clear: uniform standard across circuits rejects Second Circuit cases such as Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002) excessive effort and money on preservation avoid the risk of severe sanctions forecloses reliance on inherent authority or state law for ESI spoliation 20

21 IV(B). Spoliation (c t d) New FRCP 37(e) (c t d) GREAT flow chart by Eric Mandel Flowchart Approach Redux First question: has ESI been lost? No: End of inquiry Yes: Duty to preserve? If yes: reasonable steps? Yes: End No: Can the lost ESI be replaced? (e.g., reconstructed mailboxes, restoring backups, contemporaneous reports generated by dynamic databases)... 21

22 IV(B). Spoliation (c t d) New FRCP 37(e) (c t d) Flowchart Approach Redux (c t d) Can lost ESI be replaced? Yes: End No: Specific intent to deprive? Intent to deprive: No: IF PREJUDICE... curative sanctions Yes: enumerated severe sanctions 22

23 IV(B). Spoliation (c t d) Amended FRCP 37(e) (c t d) For now, spoliation sanctions decisions keep on coming... See this searchable compilation... But what does the future hold? 23

24 IV. Spoliation Sanctions (c t d) C. Possible Impacts 1. Optimistic View Lot more hoops for accuser to jump through Hopefully less discovery about discovery Forum-shopping dis-incentivized If one takes and can prove took reasonable steps, then in good shape. Counsel should: Ask key questions up front & throughout Memorialize key decisions 24

25 IV. Spoliation Sanctions (c t d) C. Possible Impacts 1. Optimistic View (c t d) To show reasonableness: First three EIM questions (outside) lit. counsel should ask his/her client will STILL be: Retention policy s (if any) contents, including LIT-hold segment =? Policy actually followed in trenches =? Since the time the question of LIT-hold arose, what has been done =? See SHORT video here See Sample Intake Questions 25

26 IV. Spoliation Sanctions (c t d) C. Possible Impacts 2. Pessimistic View (c t d) Discovery/hearings about discovery in spite of existence of flow chart Standards/concepts seem vague Some judges have said inherent power to sanction not completely destroyed 26

27 V. Efficiency/ Timing A. Prior Status Insufficient meat to meet and confer took a while to occur could be asynchronous participation in scheduling conference preservation negotiations in a vacuum not much collaboration/cooperation 27

28 V. Efficiency/ Timing (c t d) B. Amended FRCP 4(m), 16(b)-(c), 26(d), 26(f): Rule 4. Summons * * * * * (m) Time Limit for Service. If a defendant is not served within days after the complaint is filed, the court... must dismiss the action without prejudice... Committee Note Subdivision (m). The presumptive time for serving a defendant is reduced from 120 days to 90 days. This change, together with the shortened times for issuing a scheduling order set by amended Rule 16(b)(2), will reduce delay at the beginning of litigation. 28

29 V(B). Efficiency/Timing (c t d) 4, 16 & 26 Amended (c t d) Rule 16. Pretrial Conferences; Scheduling; Management * * * * * (b) Scheduling. (1) Scheduling Order..... the district judge... must issue a scheduling order: (A) after receiving the parties report under Rule 26(f); or (B) after consulting with the parties attorneys and any unrepresented parties at a scheduling conference by telephone, mail, or other means. Committee Note.... A scheduling conference is more effective if the court and parties engage in direct simultaneous communication. The conference may be held in person, by telephone, or by more sophisticated electronic means. 29

30 V(B). Efficiency/Timing (c t d) 4, 16 & 26 Amended (c t d) Rule 16(b) (c t d) (2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any event unless the judge finds good cause for delay, the judge must issue it within the earlier of days after any defendant has been served with the complaint or days after any defendant has appeared. Committee Note.... This change, together with the shortened time for making service under Rule 4(m), will reduce delay at the beginning of litigation

31 * * * * * V(B). Efficiency/Timing (c t d) 4, 16 & 26 Amended (c t d) Rule 16(b) (c t d) (3) Contents of the Order. * * * * * (B) Permitted Contents. The scheduling order may: (iii) (iv) * * * * * provide for disclosure, or discovery, or preservation of [ESI]; include any agreements the parties reach for asserting claims of privilege or of protection as trial preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502; direct that before moving for an order relating to discovery, the movant must request a conference with the court; 31

32 V(B). Efficiency/Timing (c t d) 4, 16 & 26 Amended (c t d) Rule 26 (part) * * * * * (d) Timing and Sequence of Discovery. (2) Early Rule 34 Requests. (A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: (i) to that party by any other party, and (ii) by that party to any plaintiff or to any other party that has been served B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference. * * * * * 32

33 * * * * * V(B). Efficiency/Timing (c t d) 4, 16 & 26 Amended (c t d) Rule 26 (c t d) (f) Conference of the Parties; Planning for Discovery. (3) Discovery Plan. A discovery plan must state the parties views and proposals on: (C) * * * * * any issues about disclosure, or discovery, or preservation of [ESI], including the form or forms in which it should be produced; (D) any issues about claims of privilege or of protection as trial-preparation materials, including if the parties agree on a procedure to assert these claims after production whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502; 33

34 V. Timing/Efficiency (c t d) C. Possible Impacts 1. Optimistic View Unicorns and rainbows? More meat in meet and confer Esp. RFP substance AND preservation on table Scheduling order more meaningful re: discovery Less delay More efficiency 34

35 V. Timing/Efficiency (c t d) C. Possible Impacts 2. Pessimistic View What about zealous advocacy? Benefits likely depend on who has more/less data (dis)-incentive to move quickly (dis)-incentive to be (aggressively) transparent Meet-confer never really helpful Boehning and Toal, Are Meet, Confer Efforts Doing More Harm Than Good? NYLJ (7/31/12) 35

36 VI. Two Less ESI- Centric Ones Rule 26 (part) * * * * * (c) Protective Orders. (1) In General. * * * The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: * * * (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; * * * * * * * * NO LONGER JUST RE: NOT REASONABLY ACCESSIBLE (MORE LIKE CCP) 36

37 VI. Two Less ESI- Centric Ones (c t d) Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things... * * * * * (b) Procedure. (2) Responses and Objections. (A) Time to respond. The party to whom the request is directed must respond in writing within 30 days after being served or if the request was delivered under Rule 26(d)(2) within 30 days after the parties first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. (B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection with specificity the grounds for objecting to the request, including the reasons. 37

38 VI. Two Less ESI- Centric Ones (c t d) Rule 34(b)(2) (c t d) (B) (c t d) The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response. (C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest. * * * * * Committee Note Several amendments are made in Rule 34, aimed at reducing the potential to impose unreasonable burdens by objections to requests to produce

39 V. Two Less ESI- Centric Ones (c t d) Rule 34(b)(2) (c t d) Ostensible Practical Tips: Get rid of your old boilerplate objections Ensure that objections conform to new rules by providing required explanations for objections and indicating when are withholding info. due to ACP No limit on RFP s, so be prepared re: (pushing back on) increased costs in responding What do you all think? 39

40 VII. Conclusion/ Questions See blog article/post here Q&A Robert D. Brownstone Blog ( IT Law Today ) Bio Biblio (articles, press & speeches, Oh My!) Twitter ("@ediscoveryguru") Facebook LinkedIn Google or rbrownstone@fenwick.com Please visit F&W EIM, Privacy & LIT. Groups THESE MATERIALS ARE MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF CURRENT LAW AND PRACTICES. THEY ARE NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL. 40