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: