Philip Favro

One of the most critical issues that attorneys must address in litigation is the need to protect their work product. Despite the importance of this issue, some lawyers have forgotten the basic elements of the work product doctrine. They might remember Hickman v. Taylor[1] from law school, together with Justice Jackson’s famous injunction against preparing a case “on wits borrowed from the adversary.” Probe more deeply into nuanced issues such as the discovery of fact or opinion work product, however, and the answers may not come so readily.

Those with an interest in civil discovery have been closely following the development of case law interpreting the recently enacted amendments to the Federal Rules of Civil Procedure. This attention is understandable given the apparent impact the rules amendments are having in discovery practice. From the focus on proportional discovery under FRCP 26(b)(1) to the modified sanctions framework created by FRCP 37(e), the amendments are causing counsel and clients to rethink existing litigation readiness practices so they are better prepared to discharge their discovery duties.

Despite their well-earned reputation for being luddites, most lawyers know by now that information relevant to a particular lawsuit often resides in email, text messages, and traditional social networks like Facebook. While such a “small step” for lawyers is certainly a positive, it also obscures the fact that there are many other, less obvious sources holding relevant electronic data. Many of these sources – including global positioning system (GPS) devices and electronic toll transponders – are often overlooked in discovery even though lawyers use them daily in their personal lives or practices.

It has been fascinating to observe the rapid change in discovery rulings among the judiciary since the amendments to the Federal Rules of Civil Procedure were enacted late last year. Whereas courts used to intermittently reference proportionality standards in connection with discovery motions, they are now doing so with regularity. More significant, however, is that courts are routinely using the reinvigorated proportionality limitations found in amended FRCP 26 to temper unreasonable discovery demands.