Drinking From a Fire Hose

Effective December 1, federal prosecutors and defense lawyers must follow a new rule of procedure that aims to ease the burden of modern discovery. It’s a simple rule with two parts.

First, no later than fourteen days after arraignment, the two sides must talk about the evidence in the case and try to agree on how and when the government will produce it.

Second, thereafter, either side may ask the court to intervene in order to help prepare for trial.

The second part isn’t new because you could always take your disputes to court, but the first part is.

It forces an early meeting of counsel to flesh out and hash out the issues, and that’s especially important as discovery becomes more complex and voluminous. Some districts already required it. More and more, federal cases can produce more data than anyone can digest. State cases, too. It’s not uncommon to defend a federal case in which the discovery approaches or exceeds a terabyte of data. It’s an overwhelming amount of data. Not all of it may matter to a client’s case, but the more it does, and the less the government points you to it or at least produces it in an organized way, the longer it takes and the harder it makes to resolve the case.

The new rule isn’t more specific because every case is different, and technology evolves quickly. Simple cases may call for a brief, informal conversation. Others, more.

But when we help people prepare for trial and understand the evidence for themselves, we promote settlement instead. And that saves time and money for everyone.

Stay thirsty, my friends.