Legal Executive Institute

The Neutral Corner: How to Effectively Use a Technical E-Discovery Neutral

October 10, 2016

By Daniel B. Garrie

The Neutral Corner: How to Effectively Use a Technical E-Discovery Neutral

In the past two years, 90% of the world’s data has been created, coming from a wide variety of sources. From automobile black boxes, cloud storage, to wearable fitness trackers, data is being collected and processed in ways barely visible to the end user. With the rise of the Internet of Things, technology has and will continue to become more and more integrated. Understandably, the rise of big data has pushed traditional legal discovery practice to its limits.

The 2015 amendments to the Federal Rules of Civil Procedure put a greater responsibility on the parties and their attorneys to actively manage the discovery process and meaningfully meet and confer regarding the scope and practicability of collecting relevant data. For example, Rule 1 was amended as follows: “[The Federal Rules] should be construed […] by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” By adding “and the parties” into the Rule, the Courts may not substantively alter obligations (though some argue it does), but it certainly sets the expectations that parties will actively seek ways to limit costs and expedite disputes. Likewise, Rule 26(b) codifies a proportionality standard for determining whether a party can obtain discovery:

the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged 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.

In keeping with these rule changes, U.S. Supreme Court Chief Justice John Roberts has stated that:

the [discovery] process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need. That assessment may […] require the involvement of a neutral arbiter […] to guide decisions.

Many attorneys now follow Chief Justice Robert’s words, and seek the aid of technical e-discovery neutral arbiters, to help reduce discovery costs and expedite discovery.

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