Page 8 - EDiscovery

S8 | MONDAY, MARCH 16, 2015 | E-Discovery
| NYLJ.COM

of courts, arbitrators and mediators, and
Move Your Discovery
effectively and efficiently managing the
electronic discovery process becomes even
more important.
Onto a Smarter Path
Beneits of Process Improvements

The anticipated amendment of Federal
Rule of Civil Procedure 26(b)(1), which has
been approved by the Judicial Conference

Understanding the rules, technology and staing is a key.
and is pending U.S. Supreme Court review,
should heighten the concepts of proportion-
ality and expense in making the decision of
how to undertake the process of electronic
discovery. While there have been pushes to
address proportionality and expense under
the current rules (which do in fact contem-
plate such considerations),1 the forthcoming

amendments’ focus on these issues should
provide guidance on electronic discovery
management and encourage parties and the
courts to look at how the electronic discovery
process is managed.
Speciically, the deinition of the scope
of permissible discovery in Rule 26(b)(1) is
anticipated to be amended effective Dec. 1,
2015, to provide as follows:

Parties may obtain discovery regard-
ing 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 con-
troversy, the parties’ relative access to

relevant information, the parties’ resourc-
es, the importance of the discovery in
resolving the issues, and whether the bur-
den or expense of the proposed discovery
outweighs its likely beneit.

Proposed FRCP 26(b)(1) (recommended
by the Judicial Conference September 2014
(emphasis added)). Although the concepts of
proportionality and expense are embedded

in the current version of Rule 26(b)(2)(C),
“proportional” will now be stated as a fac-
tor to be expressly considered, and FRCP
1’s guidance that the Rules are designed to
make resolution “inexpensive” will be further
emphasized. Given this new (or renewed)
guidance, it appears that the effective and
eficient management of the electronic dis-
covery process can take on a whole new

meaning in terms of enabling clients and
their counsel to reduce the burden associ-
ated with electronic discovery if they have
a proper legal project management (LPM)
protocol in place.
Therefore, not only is efficiency and
predictability in the electronic discovery
process good for the client from a busi- K
ness standpoint, it can become a tool for OC
GST
the litigator in prosecuting and/or defending BI
cases and leveraging their litigation posi-
ers ind that a large portion of their litigation extracted text review); others are experi- tion. For example, imagine the litigator who
BY BARRY KAZAN
spend seems to be less manageable and less mented through different pricing models can counter an adversary’s argument that
predictable when it comes to the area of elec- (e.g., per-document pricing, per-GB pricing certain requests are “too expensive” or
A sk 100 general counsel whether their tronic discovery. As a result, they continue to options, lat fees); and others try different “disproportional” to the needs of the case
law irms “get it” and you’ll likely get 100 explore new ways to achieve eficiency and allocations of worklow (e.g., in-house ver- or the amount at stake by challenging their
answers, not all of which will be positive.
predictability, to align their processes with sus law irm versus ESI service providers). adversary’s contention by showing that their

In dealing with electronic discovery, in-house their clients’ goals and to provide the best While these approaches are not necessarily project worklow is ineficient and unneces-
counsel, law irms and ESI service provid-
product at the right price when it comes to exclusive, each of them provides certain sarily expensive. Likewise, imagine the litiga-
managing electronic discovery.
beneits if used properly, but each carries tor who can demonstrate to the court that
Some of these process changes come certain risks in terms of cost and impact their electronic discovery processes or the
BARRY M. KAZAN is a partner at Thompson Hine in in the form of how technology is used on achieving the client’s ultimate goals. LPM methods its client employs are directly
New York.
(e.g., predictive coding, near duplication,
Throw into the mix the inherent uncertainty
“proportional” to the needs of the case and