FRCP – Don’t Follow, Get Sanctioned
As everyone involved in E-Discovery should know by now, some pretty fundamental updates in Federal Rules of Civil Procedures (FRCP) became active in December, 2015, most notably in Rule 37 and Rule 26. Ralph Losey determined this was the “Goldilocks Era” as being “helpful” but not a “godsend”. And, in fact, there are more changes coming down the pike in December 2016 as indicated by this LinkedIn post by Nicholas Haddad, although they possibly will not have as far-reaching and immediate impact on most discovery issues as did the 2015 updates.
So, one could assume that attorneys, practitioners and courts to speed with the 2015 changes. A skeptic might be tempted to say, “Not so fast, buddy”. A recent court ruling in Fulton v. Livingston Financial LLP (W.D. Wash. July 25, 2016), as noted by a post in the National Law Review, imposed several sanctions on defendant including plaintiff’s fees and costs, and ordering defense counsel to provide his senior attorneys a copy of his poorly-thought-out brief. Additionally, the court imposed a 5-year ‘probation’ on the defense attorney saying if he is issued or threatened with sanction in federal court, he must disclose and provide a copy of the court order and the offending brief to the court. What was the defense counsel’s huge error? He erroneously (unwisely) cited case law based on the outdated FRCP 26(a)(1) that were in place before the new amendments took effect.
This should seem like “lawyering 101”, but some attorneys and/or their firms just seem to resist change or, more importantly, resist continuing education. One would think this case is an outlier, but there seems to be too many court rulings that center on errors of this nature…of attorneys seeming to choose not to be current in regulations, laws and rules, or just fighting to do things “the way we used to do them”. The courts have changed, judges are catching up to e-discovery tactics and rules and in many instances have surpassed the attorneys appearing before them. That should be a warning – be prepared, and don’t get caught with your FRCP down and be sanctioned. After all, even legal hold development depends on following the updated rules; how can you even begin the litigation process if you don’t start out correctly?