In a Dec. 16 column she wrote for Law360, McGuireWoods counsel Cristin Traylor, who manages the firm’s Richmond E-Discovery Review Center, discussed how courts have taken a more active role in e-discovery since the rule amendments took effect in December 2015.
Citing several recent case examples, Traylor notes the struggle of courts to find a middle ground between overreaching their authority to intervene in the discovery process and enforcing actions against parties who commit discovery abuses. In the column, Traylor also identifies key considerations for establishing document search, collection and production protocols.
“Courts are taking a more active role since the implementation of the new rules and likely will continue to become increasingly involved with the mechanics and processes of discovery. For that reason, it is good practice to discuss custodians and search protocols with opposing counsel before discovery,” Traylor wrote.
She added, “This approach gives counsel buy-in from the other side, which strengthens counsel’s position to convince the court that opposing counsel should not have an opportunity to challenge the methodology after the fact. If the other side did not agree initially, and if the steps taken and executed are deemed unreasonable in the eyes of the court, then the court may just jump in to instruct counsel on exactly what to do — which may prove costly for your client.”
Traylor’s column — “Are Courts in the Discovery Driver’s Seat?” — is available online to Law360 subscribers.