The Big Day is Here: FRCP E-Discovery Amendments Go Live

Well, the day is finally here. Amendments to the Federal Rules of Civil Procedure addressing e-discovery (among other things) are effective December 1, 2015.

If you are in a rush or really like pictures, above is an infographic explaining some of the e-discovery related changes to the rules (click to enlarge). If you have more time (or are just a “gunner”), check out this article examining the FRCP amendments in some depth.

In the meantime, just to recap, here are the e-discovery related changes to the rules in brief:

Rule 1 Emphasizes that Courts, Litigants and Lawyers All Obligated to Pursue Litigation Efficiencies

Rule 1 is amended to emphasize that litigants and their attorneys, not just courts, are responsible for efficient litigation. The amendments add language stating that the Rules of Civil Procedure should be “employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Scheduling Orders Now Issued Earlier and May Address Specific E-Discovery Issues

To speed litigation, Rule 16 as amended reduces the time in which courts must issue scheduling orders. Under the new rules, scheduling orders are due from the earlier of 90 days from service on a defendant (currently 120 days), or 60 days (instead of 90 days) after the appearance of a defendant. However, even as amended, Rule 16 permits courts to extend deadlines for scheduling orders when cases warrant.

Additionally, Rule 16 now permits courts to address three additional items in scheduling orders: 1) ESI preservation; 2) Clawback agreements reached by the parties under Federal Evidence Rule 502; and 3) requiring parties to request a court conference before filing discovery motions.

Rule 26 Stresses Proportionality and Discovery Now Limited to Information Relevant to a Claim or Defense

Under amendments to Rule 26, discovery is limited to matters relevant to a claim or defense rather than permitting discovery into matters “reasonably calculated to lead to the discovery of admissible evidence.”

Rule 26 is also changed to address discovery proportionality. As amended Rule 26(b)(1) will read:

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is 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. Information within this scope of discovery need not be admissible to be evidence to be discoverable.

Rule 26 (and Rule 34), as amended, will also permit parties to “deliver” document requests to prior to Rule 26(f) conferences. The requests will then be considered served at the conference. The change is made to facilitate discussions about discovery and document production at the Rule 26(f) conference.

Document Request Objections Require Specificity

Under amendments to Rule 34, objections to document requests must be made “with specificity” and state whether material is being withheld based upon objection.

Rule 34 is also amended to reflect the fact that rather than permitting inspection of documents, parties often produce copies of documents or ESI. Under changes to the rule, responses to document requests must indicate that copies are being produced and specify the time of production.

Finally, under changes to Rule 34, if litigation document production is made in stages, the beginning and end dates of production must be specified in the response.

Most Serious E-Discovery Spoliation Sanctions Require Bad Faith

Federal Rule of Civil Procedure 37 is amended to address a spilt among courts regarding the culpability necessary for severe sanctions for failing to preserve ESI. Some courts required only negligence while others required a finding of bad faith.

Under Rule 37(e)(1), courts may only “order measures no greater than necessary to cure the prejudice” and bad faith is required before imposing serious sanctions such as dismissal or adverse inference jury instructions.

The text of all the amendments to the Federal Rules of Civil Procedure may be found here.