In this day and age, advocacy starts with competence in ESI issues. An effective advocate must be able to assess e-discovery needs and issues, implement appropriate preservation procedures, advise clients on options for storage and preservation, understand the client’s ESI systems and storage, and handle the management, review and production of ESI in litigation. But this knowledge by itself is not enough. Only with an understanding of how the amendments to the Federal Rules account for issues pertaining to ESI can the attorney meaningfully advocate for the client.
Relevance and Proportionality Defines the Scope of Discovery
One of the major changes to the rules is the deletion of the phrase “reasonably calculated to lead to the discovery of admissible evidence” in Rule 26. That language was previously used to describe the test for relevance, but it was often incorrectly applied to define the scope of discovery to the point where it swallows any limitation on the scope of discovery. The new test now emphasizes proportionality, and the relevant case law informing the scope of discovery going forward will increasingly be that which applies the new rules. See In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016) (“[J]ust as a statute could effectively overrule cases applying a former legal standard, the 2015 amendment effectively abrogated cases applying a prior version of Rule 26(b)(1)”).