Unless Congress takes action within the next month, important amendments to the Federal Rules of Civil Procedure will take effect on December 1, 2015. Several of these changes will shape how we approach e-discovery, but will the new rules be a trick or a treat? That’s largely up to the parties.
Currently, Rule 1 advises that the Rules should be “construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” The amendment explicitly places the burden to carry out the rule directly on “the court and the parties” in an effort to foster cooperation between parties. The amendment notes recommend that parties should avoid engaging in the “over-use, misuse, and abuse of procedural tools that increase cost and result in delay.”
Treat: Parties will engage in meaningful conferences that curtail unnecessary discovery requests that raise expenses and cause delays.
Trick: The chances that parties will become more cooperative on their own, without the encouragement of sanctions to do so, may be slim.
The Speed of Litigation
The amended rules shorten several critical timeframes. For example, the time to serve process drops from 120 to 90 days (Rule 4), and the time for issuing a scheduling order is reduced to 90 days after any defendant is served or 60 days after any defendant appears (Rule 16(b)), speeding up the deadline for the Rule 26(f) conference, which now must occur 21 days before the scheduling order is due.
Treat: Cases will move more expeditiously through the docket.
Trick: Parties with a significant amount of electronic data that have failed to establish a litigation readiness plan may find themselves struggling to comply with deadlines.
The Committee transferred language about proportionality from Rule 26(b)(2)(C)(iii) to Rule 26(b)(1), so that discovery is now limited to non-privileged matters that are “relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
Treat: Courts will take a more active role to limit the scope of discovery, and litigants will no longer be about to force parties to settle based on the threat of a potentially high—and costly—volume of discovery.
Trick: Parties may use proportionality as a tool to avoid discovery. Motion practice over the proportionality factors could escalate, driving the cost of litigation higher and further delaying litigation.
As revised, Rule 37(e) sets forth the appropriate punishment for parties that negligently or intentionally fail to preserve electronic information. If the loss of evidence is negligent, and the evidence cannot be replaced or restored, the court can order measures “no greater than necessary to cure the prejudice.” Only if the destruction is intentional can a court impose an adverse inference instruction or dismiss the action.
Treat: Organizations with significant electronic data stores will welcome this amendment, which eliminates the circuit split as to the proper justification for an adverse inference instruction. Requiring “intent to deprive another party of the information’s use in the litigation” should give parties confidence to administer document retention programs without fearing that their execution must be perfect to avoid sanctions.
Trick: Organizations must impose legal holds and regularly follow up with custodians to ensure they are adhering to them; simply running a preservation program on autopilot may no longer suffice.
About the Author
Rachel Teisch is Vice President, Marketing at Conduent. She can be reached at firstname.lastname@example.org.More Content by Rachel Teisch