To Cure the E-Discovery Headache, Revamp the Rule 26(f) Discovery Conference

Young, Matthew | November 1, 2014

In 1938, the passage of the Federal Rules of Civil Procedure (FRCP) established discovery practice. Discovery was idealistically intended to be a cooperative and self- regulating process that would function largely free from judicial intervention. But modern electronic-discovery (e-discovery) practice has strayed from these cooperative ideals, and discovery has instead come to rely on judicial intervention. Due to recent technological advances that were unforeseen when the FRCP were amended in 2006— such as predictive coding, metadata, and shadow copies—the FRCP cannot properly govern modern e-discovery. E-discovery practice’s status quo is plainly ineffective—it is hugely burdensome and expensive, and is an obstacle rather than a tool. E-discovery’s issues must be confronted head-on. Many have requested that the Advisory Committee on the Rules of Civil Procedure (Advisory Committee) amend the FRCP in order to remedy these issues. In response, the Advisory Committee is currently discussing the idea of limiting evidence spoliation by adding a data-preservation duty on potential litigants. But recent technological advances and judicial activity render this proposal insufficient—the FRCP must be amended to recognize that e-discovery will perpetually present novel threats. E-discovery’s modern threats require constant judicial intervention, so to maintain discovery’s cooperative spirit towards fact-finding, the court must be brought in at litigation’s earliest stages. This Comment proposes that the Rule 26(f) discovery conference be amended to bring the court in at the earliest stage of discovery. Amending Rule 26(f) in this way recognizes that e-discovery is perpetually evolving, and would create a versatile discovery system that can efficiently react to novel issues that will inevitably arise. Part I of this Comment discusses the FRCP’s current e-discovery framework and the mechanical evolution of the Rule 26(f) conference. Part II gives an overview and evaluation of the current dialogue on whether the FRCP should be amended in light of modern e-discovery law’s shortcomings. Part III considers three contemporary developments in the e-discovery landscape—predictive coding, metadata, and shadow copies—and gives light to the FRCP’s current failures in effectively managing e- discovery. Part IV proposes an amendment to the Rule 26(f) discovery conference, which would give the court an active managerial role at this early litigation stage. Finally, Part V demonstrates the benefits of this proposed amendment by applying it to a current issue—the federal circuit split on which costs relating to the production of electronically stored information (ESI) are recoverable by the prevailing party.