Rule 1, 16, 26, 34, 37: FRCP Amendments Pertaining to eDiscovery

This post explains the FRCP amendments pertaining to eDiscovery and how they improve cooperation, proportionality and provide uniform rules for preservation.

Recently, I was privileged to be included on a panel to discuss the 2015 FRCP Amendments. The panel was hosted by the American Bar Association as a part of its 24th Annual Insurance Coverage Litigation Mid-Year Program in Phoenix, AZ. My co-panelists included the Hon. David B. Gass, Superior Court of Arizona, Jennifer L. Meeker, Nossaman LLP, and Ginny L. Peterson, Kightlinger & Gray LLP, and the panel was moderated by Erica J. Dominitz of Kilpatrick Townsend & Stockton LLP.

This On-Demand webinar discusses attorney’s ethical obligation to understand the use of technology as it relates to preservation, and analysis of data during discovery.

The presentation focused on a couple of overriding themes of these amendments.

• Cooperation;
• Proportionality; and
• Uniform rules around preservation and spoliation.

While the amended rules have been in effect since December 1, 2015, there are still differing reactions as to the likely impact of them. One statement that I thought bears repeating was made by Judge Gass, who stated that despite all the rules, changes, amendments, and other challenges, “Justice is like water… it will always find its way.”

You can review the amended rules and comments here.

Early Case Management

Many of the amendments focus on reducing delay and improving cooperation between adverse parties and the court. As amended Rule 1 – “Purpose and Scope” – states: “These rules … should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Reducing delay at the beginning of litigation is addressed through Rule 4(m). The time frame for serving defendants has been reduced from 120 to 90 days after filing of complaint. Rule 16(b)(2) requires that scheduling orders be issued no later than 90 days (shortened from 120) after defendant is served, or 60 days (shortened from 90) after appearance of defendant unless there is good cause for delay.

Improving communications is another key focus and is addressed directly through Rule 16(b)(1), the amendment to which deletes reference to scheduling conferences held by “telephone, mail or other means.” This rule was amended with a focused belief that direct communication between parties is more effective and can cut time and effort.

Scope of Discovery and Proportionality

The focus of these amendments is to deal directly with scope and true proportionality around ESI and discovery efforts. Rule 26(f) directs that parties must now include views on preservation and court orders under FRE 502. Of critical importance, parties must fully understand their clients’ ESI landscape early, and that RFP’s prior to this conference are now allowed. Additionally Rule 26(d)(2) allows for discovery requests prior to the conference but NOT earlier than 21 days after service, and states that the time for response does not start until after the conference. Of special note, the amendment to Rule 26(b)(1), relating to the scope of discovery, adds narrative that requested information must be relevant and “proportional to the needs of the case.”

RFP issues are addressed specifically in amended Rule 34(b)(2), which provides four requirements:

• Be more specific in objections to RFPs;
• State whether documents actually will be withheld pursuant to each objection;
• State whether they will produce copies or permit inspection; and
• Complete production “no later than the time for inspection specified in the request or another reasonable time specified in the response.”

ESI Preservation and Sanctions

Rule 37(e) – The amendments provide for a three-part “test” that a court must apply in determining whether ESI was properly preserved, and if it was not, specifies the penalties that are available. The conditions are:

1. ESI that “should have been preserved in the anticipation or conduct of litigation,” is lost;
2. Because the party “failed to take reasonable steps, to preserve it”; and
3. The loss cannot be remediated through “additional discovery” that would replace or restore the ESI.

Key Takeaways

1. Cooperate!
2. Plan to preserve and manage ESI early in the case.
3. Discuss ESI preservation/discovery with your client and opposing counsel.
4. Be specific (in your RFP responses).
5. Do not make boilerplate objections.
6. Be prepared for motion practice over “proportionality” and “reasonable steps to preserve.”