The Advisory Committee on the Federal Rules of Civil Procedure recently recommended several important changes to the FRCP. There is some debate about the effectiveness of the measures recommended, but very little disagreement about the fact that this would be a large change.
Perhaps the most controversial and sweeping of the proposed amendments is an adjustment limiting the scope of e-discovery to be “proportional to the needs of the case… issues at stake in the action, the parties’ resources,” and other considerations the court can take into account. Currently, some courts have adopted limitations for e-discovery and others have not, but a real change here would create consistence and require parties to follow proportional e-discovery rules with no court intervention necessary.
In addition to the broad language above, there are some more specific limits. Written interrogatories will be limited to 15, rather than 25, and oral and written depositions will be limited to 5, down from 10. These limits are subject to review by the court on an case-by-case basis.
Another major adjustment is the new “safe harbor” language that is intended to protect parties from sanctions should they follow reasonable protocols to ensure the preservation of Electronically Stored Information (ESI). This protection will apply unless the court finds that a failure to preserve was “willful or in bad faith,” or if it “irreparably deprived a party of any meaningful opportunity” to litigate the claims in question. This rule stands to benefit many corporations, who often have policies in place to preserve ESI far beyond what many consider reasonable simply to avoid sanctions or adverse jury instructions.
There are numerous other changes that reflect the changing legal world, such as specific language about the various options that parties have for producing ESI; a requirement to meet and confer prior to discovery to discuss issues surrounding electronic evidence; and conditions governing non-party production of ESI. These proposals will be open to comment from the public, and are subject to further modification and review before they are approved. It seems likely that they will eventually be implemented, and attorneys who gain a thorough understanding of the rules early stand to have a leg up over competitors who do not take the time to learn them in-depth until they are in the midst of litigation when it may be too late.
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