Anyone familiar with electronic discovery (e-discovery) and complex civil litigation knows that there is tremendous evidentiary benefit to quickly getting to the underlying facts of a matter. The speed, efficiency and accuracy with which you can identify, preserve, collect, analyze and produce relevant information can have a dramatic effect on the strength and overall strategy of your case. This link between how an organization governs its information and how well and quickly that organization will be able to navigate these stages of e-discovery is the reason that information governance (IG) is the first phase of the Electronic Discovery Reference Model (EDRM).

This article series will explore how implementing an effective IG program promotes better e-discovery outcomes by improving how, what, when and why discoverable information is preserved within an organization. Part I of this series will provide an introduction to the current e-discovery landscape, a summary of key 2015 amendments to the Federal Rules of Civil Procedure (FRCP), and an overview of core IG principles. Part II will explore how IG practices can affect e-discovery, with an emphasis on the amendment to FRCP 37(e), and provide an overview of recent case law in this area. Part III will explore practical approaches to creating a solid governance framework within a company and include several initial IG-centered projects that benefit e-discovery and litigation as a whole.

E-Discovery in the Big Data Era

E-discovery has been around for decades, but it's gone into overdrive in the big data era. As technology has gotten more advanced over the last 20 years, we have seen dramatically rising costs of e-discovery, exponential increases in data volumes and complexity of data sources, massive over-preservation of organizational data, lack of uniform national standards on sanctions, and increasingly contentious motion practices. E-discovery permeates almost all types of cases—large and small, federal and state—and most substantive areas of law.

2015 FRCP Amendments

First established in 1938, the FRCP govern civil procedure, including e-discovery, for federal lawsuits in the United States. The FRCP have undergone several amendments over the last several decades, with the most recent amendments occurring in 2015. Key amendments pertaining to e-discovery relate to Rules 26(b) and 37(e).

Rule 26(b) governs the scope of discovery. The 2015 amendment to Rule 26(b) adjusts the existing scope of discovery to specifically include the concept of proportionality. Under the new Rule 26(b), discoverable information needs to be not only relevant to a party's claim or defense, but also “proportional to the needs of the case.” The new Rule 26(b) provides the following six criteria to assess proportionality:

(1) The importance of the issues at stake in the action.

(2) The amount in controversy.

(3) The parties' relative access to relevant information.

(4) The parties' resources.

(5) The importance of the discovery in resolving the issues.

(6) Whether the burden or expense of the proposed discovery outweighs its likely benefit.

The amended Rule 26(b)'s new focus on issues relating to proportionality in litigation seeks to balance the evidentiary value of information against the costs and burden of preserving and producing that information.

Rule 37(e) governs spoliation of evidence, which occurs when information that should have been preserved in the anticipation or conduct of litigation is destroyed, significantly altered, or otherwise not properly preserved. Common law imposes an affirmative duty on parties to litigation to preserve information that is relevant to a claim or defense, and this duty is triggered when litigation can be reasonably anticipated. As such, the goal of preservation in discovery is to identify and preserve electronic and hard copy documents relevant to the issues at stake in the case.

Prior to 2015, spoliation sanctions under Rule 37(e) were determined by the spoliator's level of culpability and whether the other party could show negligence, gross negligence, willfulness or bad faith. The consequences under this framework were often severe and included complete dismissal of claims. The amended Rule 37(e) shifts the focus from culpability to prejudice. Specifically, in most scenarios, a court can issue sanctions when it finds that the loss of information prejudices the non-spoliating party. This means that the lost or altered information cannot be restored or replaced through other means of discovery. Even more noteworthy is that, in most scenarios, even if a court finds prejudice under the new Rule 37(e), it may order measures no greater than are necessary to cure the prejudice. More serious sanctions, such as jury instruction, default judgements, and dismissal of claims, are still available to courts when it is determined that a spoliator has acted with the intent to deprive.

As you can imagine, the 2015 amendments to Rules 26(b) and 37(e) have a significant potential effect on organizational information governance mandates. The renewed emphasis on proportionality within Rule 26(b)'s scope of discovery and shift from culpability to prejudice in Rule 37(e) lessen the historical burden on organizations to over-preserve information.

Core Information Governance Principles

Very simply put, IG is an organization's strategic approach to governing the creation, use, preservation and disposition of information within the organization. Seeking to maximize the value and minimize the risks of organizational information, IG serves a coordinating function between different facets within an organization, including records management, information security and privacy, risk management, knowledge management, and e-discovery. Several core IG components support consistent e-discovery functions, including (1) policies and procedures, (2) roles and responsibilities, (3) data governance, (4) training and case management and (5) assessment and compliance.

In Part II of this series, we will delve into each of these five IG components and demonstrate how good IG practices in these areas lead to better e-discovery outcomes.

Yodi S. Hailemariam and Amy Ramsey Marcos are associates in the Information Privacy, Security, and Governance group at Drinker Biddle & Reath.