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    Judges on E-Discovery: Keep It in Perspective

    May 22, 2013
    Proportionality is the hot topic when discussing the proposed rules to the U.S. Federal Rules of Civil Procedures (FRCP), which focus on addressing discovery scope and limits and cooperation. Proportionality may be fine for lawsuits involving corporations, but what about civil rights cases?
    Proportionality is the hot topic when discussing the proposed rules to the U.S. Federal Rules of Civil Procedures (FRCP), which focus on addressing discovery scope and limits and cooperation. Proportionality may be fine for lawsuits involving corporations, but what about civil rights cases?

    “It’s hard to quantify when it’s not about money,” stated U.S. District Court Judge Shira Scheindlin (Southern District of New York) at a recent panel discussion, “Judges Meet the General Counsel Department,” that was part of “A Consortium on Litigation, Information Law & E-Discovery” event co-sponsored by Thomson Reuters and the Electronic Discovery Institute.

    Sheindlin was one of three influential justices participating on the panel. She was joined by U.S. Magistrate Judge James Francis IV who, like Scheindlin, is from the Second District of New York, and Circuit Judge Peter Flynn from the Circuit Court of Cooke County in Illinois. According to Law Technology News, all three admonished that lawyers must take responsibility and not look to the judges, who are less familiar with the details of the case, to make decisions on proportionality.

    “How am I supposed to conduct proportionality (hearings)—especially right up front?” Scheindlin asked. “It’s very difficult to know how to vet things when I know little about the case and have so little time.” The lawyers need to talk to each other, she stressed.

    Flynn agreed, asking “Why would anybody ask the judge—who knows the least about the case—to make the decisions?”

    He also cautioned against “discovery paranoia—the urge to turn over the next rock, no matter the consequences. Proportionality is an attempt to get people to think about the [possible] costs of turning over the next rock.”

    On the issue of preservation, the judges advised that preservation should be viewed from a business perspective, not a litigation risk management perspective. Said Flynn, “Preservation should be for the business needs of the company not litigation. If you make preservation decisions based on what might be needed in litigation, you are going to save everything, and that’s not good for business.”

    Francis added that preservation should be just one of the many risk determinations lawyers make throughout the litigation process.

    Scheindlin observed that the courts may be “moving to staying e-discovery pending a motion to dismiss,” thus weeding out cases that cannot proceed.

    The Advisory Committee to the Judicial Conference of the United States proposed significant changes to the FRCP in January. Those changes included limiting the number of production requests and depositions, as well as the amount of time spent on depositions. The committee also proposed tightening the scope of discovery from any information “reasonably calculated to lead to the discovery of admissible evidence,” to relevant, non-privileged information that is proportional to the reasonable needs of the case.

    Defense attorneys fear limiting discovery will put their clients at an even bigger disadvantage. The judges, however, contend that the key lies with the attorneys talking to each other up front.

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