Get to Know the E-Discovery Changes to the FRCP

by Exterro, Inc.
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Five years ago, a group of judges and legal professionals comprising the Federal Civil Rules Advisory Committee met at Duke University to begin the discussion of potential e-discovery rule changes to the Federal Rules of Civil Procedure (FRCP). Barring something unexpected, those efforts will culminate in less than four months when an amended FRCP goes into effect.

Rule changes are a big deal in e-discovery. The 2006 FRCP changes, which formally acknowledged e-discovery as a distinct and highly necessary legal process, are still frequently discussed today. Will the legal profession wake up on December 1st to an e-discovery world completely transformed by this recent round of rules changes? Most experts will answer with a resounding no. But that’s not to say the 2015 amendments won’t generate their own bit of buzz. In fact, they already have.

Expectations about the effect of the FRCP amendments are varied. In Exterro’s Federal Judges Survey on E-Discovery Best Practices and Trends, only 14% of responding judges completely agreed with the statement that the “upcoming amendments to the FRCP will help solve many problems that currently occur in e-discovery today.” Nearly a quarter of respondents didn’t agree with the statement at all.

That attitude was echoed during a recent federal judge’s panel webcast examining the new rules and other e-discovery issues. Recently retired federal judge and e-discovery luminary John Facciola anticipated the rules’ attempts to improve cooperation and transparency would have minimal impact. “Deeply engrained in lawyers' ethos is an adversarial way of conducting discovery," he said. But not all judges share in Judge Facciola’s skepticism. Federal Judge Joy Conti thought the decision to beef up the principle of e-discovery proportionality (discussed below) was a “fairly significant move.”

Let’s face it, there is a large population of the legal community that is somewhat removed from the e-discovery FRCP discussion. The judges survey cited earlier also revealed an alarming lack of perceived e-discovery competence among lawyers, so the notion that many attorneys probably aren’t fully up to speed on the proposed amendments shouldn’t be all that surprising.

For the FRCP e-discovery amendment novices of the world, below is a primer on the most significant changes. You can also download an FRCP infographic, which summarizes two of the major rule changes and their potential implications.

 Cooperation:

Cooperation has been a major focal point among judges, who see the adversarial nature of litigation as a major barrier to reigning in e-discovery spending. New language was inserted into Rule 1 of the FRCP that both courts and parties are responsible for just, speedy and inexpensive litigation. The theory being that judges who believe parties are using e-discovery as a way to prolong litigation and build up an opponent’s expense can cite this new Rule 1 as a means of correcting the behavior.    

Proportionality:

Not far behind cooperation on the list of judicial priorities is proportionality – the concept that e-discovery costs for both parties should be in line with the value of a case. The new amendments include more explicit language in Rule 26(b)(1) with respect to proportionality factors, such as:

  • Issues at stake in the action
  • Amount in controversy
  • Parties’ access to relevant information
  • Importance of discovery in resolving the issues

Spoliation and Sanctions:

Litigants have long complained about the lack of uniformity among the federal circuits surrounding culpability standards with respect to document spoliation and resulting severity of sanctions. Changes to Rule 37 provide more clarity, establishing that parties will have an opportunity to rectify a loss of ESI and that sanctions can only be issued when there is a clear “intent to deprive” the other party. However, many in the legal community wish the changes here went even further.

To learn about current e-discovery case law and the need-to-know rulings so far in 2015, register for Exterro’s complimentary CLE webcast airing on August 19, 2015 E-Discovery Case Law Review

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