Want proportionality? Make the producing party act first.

May 12, 2014

Here’s a modest proposal for achieving proportionality in e-discovery. Scrap the whole ridiculous skit where the request for production is the opening salvo.

Instead, change the rules so the producing party makes the first move. Yes, I know it’s a little late to suggest this when the current round of rules amendments are so far down the road, but give this some thought.

By their very nature discovery requests tend to be overbroad, if not outright bellicose, commonly fashioned from boiler-plate precedents that include demands for telegrams and dicta-belts, and setting the stage for arguments and motions by casting a far wider net than necessary.

If they ask for it, you’d better look for it!

One of the two most controversial proposed amendments to the Federal Rules relates to proportionality. After the April meeting of the Rules Committee in Portland, revised Rule 26(b)(2)(1) will permit a party to

“obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”

These well-chosen words are as good an attempt as we’ve seen to give guidance to the profession, and to address the problem of the discovery tail wagging the litigation dog because of the massive proliferation of potentially discoverable information in our electronic age.

But it won’t solve much.

This is because in the US we “request first — respond later” as set out in Rule 34. It’s always been done that way, well since 1938 anyway. Nobody has given that a second thought, neither the drafters of the latest amendments nor the thousands of public commenters, so while some details of Rule 34 will be changed, this basic paradigm was not touched. As long as it stays that way, we will still see much the same arguments over proportionality and scope, regardless of the (probably) helpful revisions to Rule 26(b)(2)(1). Because the existing model itself sets the stage for overreach and dispute.

Requesting parties issue vague and over-broad requests because the requestor doesn’t know and cannot anticipate how the opponent’s information is organized, or what range or subset might be all that’s necessary to cover all that is relevant. As a corollary to that, companies preserve electronic data more broadly than they should have to, just in case. Disputes over burden of production are misdirected from what documents really matter to what documents were over-broadly requested.

So once again I say: Make the producing party act first. That’s the way it’s done in Canada. Ontario is the largest common-law jurisdiction in Canada and the other eight English-speaking provinces usually follow its lead. So let’s look at the Ontario Rules of Civil Procedure. (Canada’s federal court system is not analogous to the US.)

Before going further, a disclosure and disclaimer: I am a dual citizen of Canada and the United States, received my J.D. from the University of Toronto, and practiced as a litigator in that city for 11 years before going into legal technology and electronic discovery consulting. I moved to Arizona in 1994. This is not a paean to the superiority of all things in Canadian law being superior to the US. Between US and Canadian law and procedure, the similarities vastly outweigh the differences. Everyone who has worked in litigation on both sides of the border would agree. But here is one seemingly minor difference in the rules that has a major beneficial impact in the practice.

I’d never listen to anything from THIS place.

Understand first that the scope of discovery in Ontario is virtually no different from the scope in the US. Ontario Rule 30.02 reads in part:

“30.02 (1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10 whether or not privilege is claimed in respect of the document.”

(Obviously, this is not to say that privileged documents have to be turned over, but their existence must be disclosed and the reason for the claim of privilege stated, per Rule 30.03 (2)(b). How disclosure and production happens is covered in other subrules to Rule 30, and in the case of electronically stored information (ESI), also in Rule 29.1. My blog post from 2010 when Ontario Rule 29.1 was adopted covers this. )

Note that Ontario’s “Every document relevant to any matter in issue” sounds an awful lot like US Fed. R. Civ. P. 26(b)(1)’s “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”

Where Ontario is
THIS Ontario. Not the town in California.

In neither the US or most of Canada is the scope of discovery restricted to just those documents on which a party intends to rely, unlike continental Europe.
French guy
Je vous donnerai rien!

While broad American discovery is not the norm in most of the world, neither is it unique to the US (sorry America, we’re not always exceptional), and the country that comes closest to the breadth of US discovery is Canada, at least on paper. In practice, it doesn’t go as far.

Here’s why. In Canada, they don’t start by firing off requests for production. The obligation to produce relevant documents is automatic under the Ontario Rules and falls first on the producing party.

Ontario Rule 30.03 (1) reads “A party to an action shall serve on every other party an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.” [emphasis added]

Aff of Docs
             Yes, it’s as exciting as it looks.

A later subrule describes how the affidavit should separately list documents being produced, and documents for which privilege is claimed. (In practice, for large productions documents are not individually listed, but grouped, as “emails from persons X, Y, and Z, 2009-2012” etc.)

Here come the teeth. The subrule titled “Lawyer’s Certificate,” is where attorneys have to put their name on the line:

30.03 (4) Where the party is represented by a lawyer, the lawyer shall certify on the affidavit that he or she has explained to the deponent, (a) the necessity of making full disclosure of all documents relevant to any matter in issue in the action [emphasis added again]; and (b) what kinds of documents are likely to be relevant to the allegations made in the pleadings.

Once again, this subclause (a) drives home the point that, just as in the US, everything relevant and not privileged must be produced, and moreover, Ontario lawyers had better think twice before cavalierly turning a blind eye to under-production by their clients. As for subclause (b) about what is likely to be relevant to the allegations made in the pleadings, while it might be thought that Ontario’s standards of pleading require more specificity than the US Federal Rules, that is no longer true, if it ever was, since the US Supreme Court decided Bell Atlantic v Twombly 127 S.Ct. 1955 (2007) and Ashcroft v Iqbal 556 U.S. 662 (2009).

(It might have been thought that the standards of pleading are more lax under the US so-called “Notice” pleading under Fed. R. Civ. P. 8(a)(2)”a short and plain statement of the claim”, than they are under Ontario’s Rule 25.06 (1) that “Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence…”; but the difference if ever there really was one is now non-existent ever since the two decisions above-mentioned.)

Client, have you REALLY told us about all your ESI?

All right, you say. What happens in that northern utopia if the receiving party believes the opponent’s production is not complete? The same thing that happens here in the US. A motion to compel, which there is brought under Ontario Rule 30.06. But think about it. The lawyer acting for the receiving party has to think long and hard before doing that, because it in effect says to the other lawyer (and asserts to the court) “your certification was false.” The receiving party does not lightly demand more; counsel has to make a bona fide assessment whether or not the producing side has done enough to fulfill its obligations.

The psychological, social, and professional dynamic is fundamentally different just because their rule reverses who goes first.

The producing party’s initial production creates facts on the ground right away, and if the receiving counsel wants to argue it’s not enough, s/he needs some genuine basis for doing so. And contrary to a silly cultural stereotype, they will not hold back from demanding more out of politeness. Canadians aren’t that nice. Least of all, Canadian litigators. If they see a reason to suspect there’s more out there, they’ll go after it as aggressively as here in the US. But the starting point is having a reason. Lawyers who have no reason other than being a jerk develop a reputation quickly, and for them even a big city like Toronto can become a small town. Back when I practiced there, we knew who the jerks were.

(Canadians have stereotypes about Americans too. The Canadian half of me thinks my American half is stupid. My American half doesn’t care.)

Ford May 1-14
Speaking of being a jerk…

In the US, with the requesting party making the first move by a request for production, demanding too much is so commonplace that it sets the stage for a time-wasting and unnecessary proportionality or burden argument from the get-go. The imperatives of the situation US lawyers are placed in makes jerk behavior more likely, because it’s safer than failing to ask for enough.

This isn’t to say that Ontario judges don’t see fights about scope and proportionality; their rules committee has had to cover the principle of proportionality too, which means that it’s still an issue there. But the fights tend to be less common, and the volumes of ESI that are reviewed and produced tend to be less.

Again, this also isn’t to say that everything about their courts is better than here. Far from it. Complex civil cases take very much longer from commencement to trial there than they do in the US; a recent landmark decision on auditors’ liability took 12 years from initial filing to trial, a glacial pace that would not be tolerated here. Much of this slowness is due to insufficient allocation of resources to the courts in Ontario and elsewhere in Canada; the system moves with less urgency than a crowded DMV office. It was that way when I practiced law there 20 plus years ago and it’s still that way now.

But those issues aside, the Canadian practice of produce first then fight only if the receiving party believes relevant information was not produced has the effect of reducing the money and time spent on discovery, while still preserving the principle that broad discovery is the best avenue to a just result.

Cliff Shnier
Insightful Electronic Discovery Consulting
Phoenix, Arizona