Litigation Discovery and the New Federal Rules

Trying to make the best of rules open to highly subjective interpretation…

Discovery in litigation is the heart of the process. It is the system by which parties can obtain evidence from other parties and refine knowledge about the proof available for their causes of action and defenses. If done well, it is supposed to level the playing field between the parties – it often does not go well.

In 2006, the federal courts adopted new rules that for the first time made efforts at recognizing the existence of a new kind of discovery and made provisions for how to deal with it. That new area of discovery was electronically stored information (ESI), sometimes referred to as digital discovery.

In 2016, we now have newly revised rules for that discovery. Some might see these new rules as clarifications to those adopted in 2006. Others see some of the new rules as efforts to cater to the interests of corporate defendants and unduly limit discovery ability of opposing parties.

Regardless of your position on the new rules, they are here. If judges insist on  cooperation that makes the Rule 26 conferences more than just a telephone call and see, at least, translucent cooperation as a major factor influencing the overall process, some areas may see improvement and cost may actually be controlled without sacrificing justice.

So what can practitioners do to improve the process beyond demonstrating actual cooperation?

• Take great care in mapping out discovery
• Be very, very specific in discovery requests
• Don’t use “boiler plate” requests
• Stop using “boiler plate” definitions
• Make the time period clear and be specific about each request
• Stop using “General Objections” when responding to discovery. They are not provided for in the rules for a very good reason.
• Provide reasonably complete privilege logs when responding to discovery, not months after responding

How can you better organize discovery in a way that compel motions are more efficiently handled and the Court can more fully understand the motion to compel issues? There are several ways this might be accomplished and each is largely dictated by the case.

Let’s take a product defect case for example.

First, think about discovery in terms of categories and sub-categories. In terms of general categories, you may have (in no particular order):

1. Corporate and corporate structure
2. Technology
3. Design
4. Mechanical/engineering
5. Science
6. Manufacturing
7. Distribution
8. Marketing/sales
9. Enforcement activities

For each of the primary discovery categories, there will be sub-categories driven by the specifics of your case. Possibly:

1. Parent corporation, subsidiaries and corporate structure
2. Personnel – Key Custodians – Key Players
3. Information Technology – Server mapping – Retention policies – Software (particularly email, document authoring, spreadsheet, etc)
4. Original designers, original designs, modifications, formulas, etc
5. Machine process, machine design, maintenance issues, policies & procedures
6. Clinical studies, trials, crash testing, similar circumstances, video, lab books, policies & procedures
7. Manufacturing process, maintenance, policies & procedures, incident reports
8. Methods of distribution, product shipping requirements, Distribution chain, retained product
9. Marketing materials, Power Point presentations for sales, promotion activities
10. FDA, CDC, OSHA, internal quality control investigations

So, each category and its sub-category is a separate request to produce. Each Request to produce for which you believe you may receive the most objections or in which the subject matter is particularly complex, might be further broken down into more narrow, individual Requests for Production.

Each case is different and the sub-groups, in particular, will be driven by the case and the facts of the case. By sending out concise, individual, subject driven requests for production allows them to be brought before the court, if necessary, in an orderly fashion. A single motion to compel is related to a single topic. This allows for a more orderly presentation of background and need for the particular area of discovery without the judge being required to remember a whole series of varying subjects. Each motion to compel can has its own unique basis, background and legal arguments.