FBA Annual Convention: Navigating the Amended Rules for Electronic Discovery CLE – How to Balance Compliance with Complications

Protorae Law Business Litigation co-chairs, James Kinsel and Rebecca Bricken Kinsel will present the CLE program, “Navigating the Amended Rules for Electronic Discovery CLE – How to Balance Compliance with Complications”, at the upcoming Fairfax Bar Association Annual Convention on Friday, October 11th, 2019.

In the commercial litigation context, electronic discovery can be far reaching, costly, and burdensome – even if the discovery might not be deemed to reach the “undue burden or cost” standard in the Rules. This broad net is due in part to businesses having many employees with responsive documents and electronic images often being maintained for years.  As a result, litigants and their counsel will now more than ever need to balance the multiple rules, including the high burden, cost and speed of ESI, along with the risk failing to fully comply.

This program will review the amended rules which went into effect on January 1, 2019.  Rule 4:1(7) provides that “[a] party need not provide discovery of electronically stored information (‘ESI’) from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought has the burden of showing that the information is not reasonably accessible because of undue burden or cost.” And Rule 4:1(b)(7) allows court to “specify conditions for the discovery, including allocation of the reasonable costs thereof.”

Simultaneously, the new Rule 4:9 requires that an “objection must state whether any responsive materials are being withheld on the basis of that objection.” While Virginia law requires that an objection be asserted immediately or it is waived. Therefore, serving objections while assessing the full scope of potential ESI has become a shifting landscape. This is because parties may need to conduct an earlier evaluation of the universe of responsive materials enough to assess whether there is an undue burden or cost and whether “responsive materials are being withheld.” And this evaluation is being conducted under the shadow of avoiding a having fees awarded for any improper objections.

This program is approved for 1.0 MCLE CREDIT.