The overarching goal of the amendments is to make e-discovery more efficient with less delay. Perhaps no other rule has more impact on the overall goal than the revisions to Rule 16, since it occurs at the onset of litigation. There are two key components:
Timeline: Rule 16(b)(2) aims to accelerate the issuing of a scheduling order to 90 days or less (down from 120) from the date the complaint is served, unless the judge finds good cause for delay. If a defendant has appeared, then the timeframe is within 60 days (down from 90).
Communication: Rule 16 (b)(1)(B) drops criteria for a scheduling conference to take place either by “telephone, mail, or other means.” The Committee Notes emphasize having all parties communicate “in direct simultaneous communication.” In addition, 16(b)(3)(B)(v) states that before “moving for an order relating to discovery, the movant must request a conference with the court.” Rule 16(b)(3) allows discussion of ESI preservation and party agreements under Rule of Evidence 502.
In summary, Rule 16 presents a consolidated timeline, with high-stakes conferences early on in matters with an increase in court participation. As corporate counsel, there are a few things you can do to position yourself to take advantage of the changes.
The accelerated timelines require the ability to quickly identify your potential ESI sources not only to take control of the scheduling conference but also to prepare to discuss proportionality and the scope of discovery found in Rule 26.
Having performed some Early Case Assessment (ECA) prior to the scheduling conference or 26(f) conference can be vital to determining case strategy. Where does the data reside? Is there anything not easily accessible, such as archived or international data? What is in the data? What is the risk assessment of the matter? What are the potential costs of discovery and review?
In order to respond to these questions, corporations need to have a plan of action to be able to quickly assess data in a timely and cost-effective manner. Some corporations will have internal resources available to accomplish a portion or all of their ECA while others can benefit from establishing a relationship with a service provider. A service provider, regardless of which stage it is brought in, should be able to familiarize itself with your organization’s data and develop defensible and repeatable workflows to allow counsel – either in-house or outside – to perform the necessary analysis required.
When the scheduling conference occurs, it can be advantageous to include an e-discovery specialist in attendance to avoid surprises or gamesmanship later on in the matter. The rules aim to curb gamesmanship, fishing expeditions and the like, but companies can be susceptible if they’re not prepared – and not just from opposing counsel. While judicial interpretation of the rules is undetermined at this stage, judges will likely emphasize competence in conferences, particularly if they’re involved in the meetings. Not being prepared is one way to fall out of favor quickly.
I believe the amended rules represent a positive change on a whole, but they essentially stress existing best practices. Corporations that have their ESI house in order with well-defined and adhered to data retention policies and are proactive with ECA should be able to benefit the most and take advantage of the efficiency and faster timelines in the new rules.
Tom Spaulding is Managing Shareholder, Northern California at Inventus. He entered the discovery space shortly after the 2006 Federal Rules of Civil Procedure went into effect. In the eight-plus years since, Spaulding has gained extensive hands-on experience working with clients in project management and discovery consultant capacities. He interfaces primarily with corporate legal teams to streamline their discovery processes and reduce the cost and risk associated with discovery. Spaulding is a Certified E-Discovery Specialist. firstname.lastname@example.org
Published December 1, 2015.