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The eDiscovery Evolution

As we’ve learned throughout this semester, technology is rapidly changing the legal field in many ways. Specifically, advancements in the eDiscovery technology are opening the door for new employment opportunities for specialists and give law firms newfound capabilities. Coinciding with the general diaspora from paper to the digitized world of legal documents are shifts in the Federal Rules of Civil Procedure. The biggest change is to Rule 26, which now imposes a proportionality requirement to the eDiscovery. The original Rule 26 language was pretty vague, “the discovery must be reasonably calculated to lead to the discovery of admissible evidence. The 2015 Amendment holds, “the eDiscovery must be proportional to the needs of the case.” The new rule imposes a greater burden on parties because it forces them to to take into account things like the amount of damages, the sides’ resources, and the benefit of the evidence sought versus the lengths it would take to find. In the end, this in many cases will lead to an attorney being forced to make a greater evidentiary showing for why the discovery is necessary. This reflects the intent of the rule change – to speed things up.

The fact is eDiscovery can be extraordinarily expensive. The courts denounce “entrepreneurial litigation,” those cases where both a plaintiff’s chances of prevailing and damages are small, and the only real winner ends up being the attorneys. Both technology and the rules changes help to remedy this issue. On the technology side, I predict there will be an influx of highly specialized IT groups that law firms contract for eDiscovery. Artificial technology advancements, groundbreaking coding techniques, automated redaction and dashboard reporting will continue to evolve as these specialty eDiscovery groups gear their innovations towards becoming as efficient and capable as possible. Additionally, law firms themselves will be incentived to maintain a highly secure and organized electronically stored information ecosystem. This is crucial to helping a third party specialty group collect, process, and analyze data, thereby directly impacting arguments for further and against discovery.

There is a potential unintended consequence of this movement in that it significantly favors parties with access to high-level eDiscovery capabilities. The greater the ability a party has to pinpoint the data they seek, the more likely they are to meet their Rule 26 showing for proportionality, being that the burden of obtaining that information is relatively low. Additionally, there can be a snowball-like effect in that highly capable parties are more likely to make a showing for expanding the scope of discovery at the outset. Before these high-level eDiscovery techniques become ubiquitous in the legal field, the party with the more capable and efficient eDiscovery team will undoubtedly have an upper hand.

All in all, the 2015 Rule 26 Amendment reflects the changing technological world we live in. No longer are the days of responding to a dreadful request for discovery by crying “undue burden.” As eDiscovery specialty groups enhance their capabilities, such a response will become increasingly futile in the eyes of the court. It is only a matter of time before the language of eDiscovery becomes as ubiquitous to judges and attorneys as the rules themselves. In the meantime, if firm is able to offer these types of innovative services, surely they will have an upper hand.

-Zack Sobel