Rodney King, that unexpected voice of reason in a wilderness of social chaos, put it this way: "Can't we all just get along?"
It's a catchphrase that can serve in the most complex situations, including discovery disputes. A judge may not quote Rodney, but the admonition still rings true and lawyers should take note.
When the federal discovery rules changed in 2015 to deal with the potential for massive eDiscovery disputes -- from the "reasonably calculated" standard to a "relevance and proportionality" standard -- one thing did not change: judges want lawyers to sort out their own discovery disputes.
Here are some pointers for in-house counsel, who have the bottom-line responsibility for limiting expensive and time-consuming waste of legal resources in discovery:
Times Have Changed
For those of us who got used to objecting and chanting, "not reasonably calculated to lead to the discovery of admissible evidence," Dec. 1, 2015, meant it was time to learn a new song.
That's when FRCP Rule 26(b)(1) rearranged the law to focus on two key concepts in discovery: let's say it together, "relevance and proportionality." The standard is intended to limit discovery to only the necessary elements in a case.
In-house counsel should make sure their lawyer dogs know the new tricks. It's a sanctionable offense to argue the old standard and ignore the new.
It's More Than Cost
Cost-savings has always been a practical limit in discovery, and the new rule was designed to help with that. But that is only part of the calculus built in to Rule 26(b)(1).
Courts are sympathetic to the financial burdens of litigation, but will still compel discovery when parties can show information is necessary. In First Niagara Risk Management v. Folino, the court ordered ediscovery of "all email, texts and text chains" with more than 100 variations of search terms. The court acknowledged the demand was broad, but it was still proportional.
Consider all the Factors
Fed. R. Civ. P. 26 requires courts to consider six factors when defining the scope of discovery:
- (1) the importance of the issues at stake,
- (2) the amount in controversy,
- (3) the parties' relative access to information,
- (4) the parties' resources,
- (5) the importance of discovery in resolving the issues, and
- (6) whether the burden or expense of discovery outweighs its likely benefits
In no particular order, let's just skip to number (5) for emphasis. That's because it contains the word, "resolving."
However you slice the rules, judges want parties to resolve their issues. And they will readily send parties back to the bargaining table to resolve discovery issues, especially when it comes to the complexity of eDiscovery.
"The courts do not provide justice, they provide resolution," the late Judge Leonard Goldstein said. RIP your honor, and Rodney, too.