February is the month of love. Hearts, candy, and flowers. The hint of spring harkening. The enthusiasm of a new year upon us.
But for one federal court judge, the New Year brought no love.
In early January 2018, Judge James Browning, from the district of New Mexico, issued an opinion reviling the 2015 Federal Rules of Civil Procedure (FRCP) amendments – the same amendments that most of our e-discovery community heralds. Why no love?
The opinion came in Landry v. Swire Oilfield Servs., No. CIV 16-0621 JB/LF (D.N.M. Jan. 3, 2018), a suit involving Fair Labor Standards Act claims by oilfield operators who assert they were not paid appropriate overtime and minimum wage rates. In discovery, the plaintiffs sought electronic payroll records controlled by a third-party payroll processor. Controversy arose when the Defendants produced 12,249 pages of payroll records in a PDF format, without labeling or indexing. The Plaintiffs objected, arguing that the documents were not produced in an electronically searchable format, just as they were kept in the usual course of business. The Defendants stated they were granted a one-time download of records into PDF files before their relationship with a third-party payroll processor ended. They further contended that they could no longer demand the information from the former payroll vendor, asserting that what they produced was in a “reasonably usable form” per FRCP 34.
Complex databases; access, custody and control; production format – all of the fixings for a significant discovery dispute.
Many of you know what comes next: protracted motions, multiple hearings with the court, deadline extensions, drawn-out depositions. In fact, in one hearing, the court stated that sometimes “you have to do a little discovery to get discovery” and ordered deposition testimony to get to the bottom of the payroll database issues between the Defendants and their third-party processors.
This “discovery about discovery” set the stage for Judge Browning’s January 3rd Order. In the Order, Judge Browning went deep into the annals of FRCP history, studying the scope of discovery language in Rules 26 and 34 dating back decades. His conclusion? Almost 20 years of FRCP amendments have narrowed the substantive scope of discovery and injected courts deeper into the discovery process.
Towards the amendment drafters, he ridiculed, “Instead of being Aristotelian and trying to draft rules, the 2015 amendment drafters largely opted to make federal judges Plato’s enlightened guardians. They have decided that no single general rule can adequately take into account the infinite number of possible permutations of different claims, defenses, parties, attorneys, resources of parties and attorneys, information asymmetries, amounts in controversy, availabilities of information by other means, and other factors.”
He further expressed his frustration with the role of active judicial discovery management. “They have dropped all discovery disputes into judges’ laps. The drafters have decided that this determination requires the individualized judgment of someone on the scene,” stated Judge Browning.
In discussing the process behind the 2015 FRCP amendment promulgation, Judge Browning hinted at the conservative biases of the drafters, resulting in amendments favoring corporate defendants. Highlighting a New Mexico article from January 2016, he wrote, “The Court shares some of the concerns with the new amendments being pro-business and giving corporations new tools to limit plaintiffs’ discovery.” He went so far as questioning the benefits of the 2015 amendments, writing “…the Court is skeptical that the 2015 amendments will make a considerable difference in limiting discovery or cutting discovery costs.”
In the end, Judge Browning ordered the Defendants to produce the documents in the electronic format requested by the Plaintiffs. However, he also granted a couple of the Defendants’ discovery motions, including a request for a one-week discovery deadline extension. In essence, despite the peevish (but thorough) Order, Judge Browning worked to find a bit of a balancing act between a corporation and the plaintiffs needing access to relevant information.
If there is one thing that this 50+ page order illustrates, it’s this. E-discovery is messy. But, as ACEDS professionals, that’s probably nothing new to you. Difficult discovery scenarios bring out the dark side of both the FRCP and the judges charged with interpreting those rules. Yet, no amount of love for cooperation or proportionality – or any other favorite provisions of the 2015 amendments – can outweigh the reality that the efficacy of some of the rule changes remains to be seen.
