Lawyers for agencies being sued in federal court need to make doubly sure they talk to IT specialists and vice versa, following recent changes to the rules for such cases, experts said.
At issue is a revamp of the Federal Rules of Civil Procedure that went into effect Dec. 1. Among the changes: It accelerates the timeline for pre-trial procedures, including the e-discovery process, when both sides turn over digital documents to each other. It also puts a greater emphasis on “proportionality” — the idea that the court must weigh the “reasonableness” of the e-discovery request, the cost of obtaining the information and its importance.
The changes were made by an advisory committee made up of judges and legal scholars.
Mark Michels, a director at Deloitte Advisory, which works with agencies on e-discovery projects, said the update underscores the need for agency staff to have “better, more meaningful conversations” about digital discovery requirements, especially given that legal and IT specialists speak what amount to different languages.
“The rules are another kind of English, and IT is another kind of English. So if they have the opportunity to speak with each other and talk about them, then the ability to move quickly and understand the landscape is very important,” he said.
Indeed, the changes put a greater emphasis on knowing where an agency’s information is — whether it be in legacy systems, the cloud or a mobile device — and how to get at it, he said. Johnny Lee, managing director of forensic, investigative and dispute services at accounting and consulting firm Grant Thornton LLP, said not having strategies for managing data can have dire consequences.
“A key motivator for the change of the rules was to provide a more uniform approach to when courts should apply the most severe spoliation sanctions” against parties who have failed to locate or turn over digital evidence, Lee said. Such sanctions may cause one party to lose a case outright, he said.
Speaking at FedScoop’s 2015 Edge Summit on e-discovery, Tiffany Branch, the Food and Drug Administration’s division director of records, agreed that communication was important.
“I think that anything that constricts our timelines will require us to have increased level of collaboration with all the relevant stakeholders and IT is absolutely, I think, one of the key stakeholders,” Branch told FedScoop after her presentation. “Without IT, you can’t get to the information.”
However, she said it remained to be seen what the changes mean for her department.
“I’m sure there will be lots of court cases that further define” how to apply the updates, she said.