Civil Rules Roundtable: The Real Problem is Technology

Tuesday, December 1, 2015 - 17:06

The rules on proportionality have not changed much in terms of actual language. So why is there so much focus on proportionality now and how do the Duke Guidelines contribute to the discussion?

The most recent round of amendments to the Federal Rules of Civil Procedure were made in an attempt to address complaints about the costs, delays and burdens of civil litigation in the federal courts.

The real problem is technology. Technology is creating, and recording, an unprecedented amount of video, messages, system readings and data points. Everything from the 10,000 Tweets sent, 50,000 Google searches executed, 111,166 YouTube videos watched, and 2,441,806 emails sent every second, to the use of digital thermometers, navigation devices and wearable Fitbits that monitor and record so much of the world we live in.

As the use of technology, and the digitalization of our daily lives, has increased, so has the cost of discovery. The extraordinary increase in the use of the Internet, social media and mobile devices has also created a dramatic increase in the types, sources and volume of potential evidence. So much so, that the effort required to identify, collect and manage all of the potentially responsive data in a single case can outweigh the value of the case itself.

Therefore, some limits are not only desired, they are mandatory. The rules on scope and proportionality were edited to narrow and clarify the scope of discovery and to emphasize that parties should use proportionality as an initial approach, not as a last resort.

However, while the rules direct parties to act proportionately, they don’t give much guidance on how to do so. That’s where the Duke Guidelines play a role.

The Duke Conference’s “Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality” have been recently released. These are the result of the efforts of dozens of seasoned practitioners, judges, academicians and technologists. The process purposely included prominent discovery thought leaders from both sides of the bar (plaintiff and defense).

The Guidelines (and commentary) provide a roadmap to understanding the rules, defining some of the terms of art and clarifying which party has which duty, and when. In addition to the five Guidelines are ten Practices that lay out recommended tactics and techniques for developing cost-efficient and proportionate discovery, and for avoiding or resolving discovery disputes.

As society develops new methods of digital communication, and experiences an even greater adoption of mobile technologies, the universe of potentially discoverable information will continue to expand. Proportionality is an effective approach to ensure that resource-constrained parties still have access to the judicial system.


Dan Regard is the CEO of iDiscovery Solutions. As a lawyer and programmer, he has participated in shaping the law, tools and best practices of electronic discovery for over 20 years. He participated in developing the Duke Proportionality Guidelines.