Today's electronically stored information (ESI) can be a minefield for e-discovery practitioners. Not only do they need to stay up-to-date on the latest types of ESI being created, they also need to understand how to best manage and properly produce that data in court.

While the 2015 amendments to the Federal Rules of Civil Procedure (FRCP) sought to make managing ESI in discovery easier, it's not always clear to many parties how these amended rules apply on the ground. At “The ESI of Today and the ESI of Tomorrow” keynote address on day two of ALM's 2018 Legalweek conference in New York, four federal judges will shed light on how best to navigate ESI evidence and the FRCP in modern e-discovery.

The session, moderated by Shook, Hardy & Bacon partner Patrick Oot, will include U.S. Magistrate Judge Andrew Peck of the Southern District of New York; U.S. District Judge Xavier Rodriguez of the Western District of Texas; U.S. District Chief Judge Joy Flowers Conti of the Western District of Pennsylvania; and U.S. Magistrate Judge William Matthewman of the Southern District of Florida.

Oot noted that the session will primarily examine how the 2015 FRCP amendments are developing through to the courts with regards to e-discovery, and what new ESI forms and technologies are coming into play in discovery.

Matthewman said he hopes legal professionals that attend the session “come out with a better knowledge about how to handle electronic discovery and how to deal with ESI discovery disputes.” Such a session is necessary, he noted, because “ESI now covers so many different areas that sometimes the scope of discovery can be so broad and so large that it really becomes ineffective and disproportionate to the case at hand.”

And though there is already some progress being made to better understand and apply the amended FRCP, Matthewman still sees much left to do. “Overall, from what I'm seeing, lawyers are getting better at dealing with ESI discovery, but I think there is still is a long way to go. I think there is a lot lawyers can learn.”

 

He noted, for example that “attorneys and parties still need to be very much aware of how FRCP Rule 37(e)”—which concerns when and how courts can sanction parties that fail to preserve discoverable ESI—”works, the way spoliation determination is made now under the rule, and the matter in which courts will decide spoliation disputes.”

Sometimes, however, it's not just attorneys that are struggling to accurately interpret and apply the FRCP rules in e-discovery. “I think there is a lot, quite frankly, that judges can learn about how to deal with ESI discovery,” Matthewman said.

“I think that Rule 26(b)(1) dealing with relevancy and proportionality is something that varies on a case to case basis,” he explained, adding that “some of the biggest disputes are over what the scope of discovery should be.”

In addition, he added that “spoliation sanctions, what is spoliation and does it meet the sanctions test under rule 37(e)” are still areas that have “caused a lot of judicial labor.”

But even though judges may have differing interpretations on how to apply FRCP rules to e-discovery, there are still ways courts can ensure parties know what is expected of them. Oot, for example, stressed the importance for courts to have “an ESI protocol and a protective rule order that really sets up the path for requesting information. It sets up the mechanism for how folks are producing information. I think that is something more and more people pay attention to because it's important in setting up the rules of the road.”

But he also added that in some instances, parties themselves may be applying the FRCP rules too aggressively. And it may be intentional.

“A producing party has an obligation under FRCP 26(g) to conduct a reasonable inquiry. But what is happening now in a lot of cases we see coming out is that parties are second-guessing the reasonable inquiry of their adversary,” he said.

“That whole process is called 'discovery on discovery,' and it is traditionally something that is only reserved when showing deficiencies,” Oot explained. “But we're seeing it more and more in litigation now, and to gain leverage in the settlement or to gain leverage before the court.”

He added, “I think something should be done about it, but it's an ongoing discussion. But hopefully we'll have some words of wisdom from the judges on this.”