Back on September 15, 2015 I participated in a webinar conducted by the University of Florida Law School's E-Discovery Project entitled, "The New Federal E-Discovery Rules Amendments: Counsel's New Duties and Ethical Responsibilities". It can be viewed here: https://mediasite.video.ufl.edu/Mediasite/Play/dc5e399005fc45c9b904c10d2bc1928c1d
William Hamilton, the executive director of UF's E-Discovery Project, conducted the webinar with Gary Jones, a United States Magistrate Judge, and Ralph Artigliere, a Florida Circuit Court judge.
The coming amendments had their origin in a conference at Duke in 2010. They have been approved by the Supreme Court and submitted to Congress. They will take effect on December 1, 2015. The major changes will be to FRCP Rule 1, Rule 16, Rule 26, Rule 34 and Rule 37.
The notes to the amended FRCP Rule 1, states that effective advocacy depends upon proportional and cooperative use of procedure. It also states that no new sources of sanctions are being created. The parties, and not just the court have to employ the Rules to secure the just, speedy and inexpensive determination of actions.
Rule 16 emphasizes the importance of direct, simultaneous communication. Scheduling orders have to be issued 30 days earlier.
The proportionality factors under Rule 26 now take into consideration the importance of issues at stake in the action and the parties' relative access to relevant information, in addition to whether the burden and cost of discovery outweighs its benefit. FRCP 26(b)(1) was amended to remove the phrase "reasonably calculated to lead to the discovery of admissible evidence" - discovery will only be in a defined scope.
Rule 34 will now require that objections specifically state whether or not responsive materials are being withheld on the basis of the objection.
Rule 37(e)'s curative measures will be imposed only if ESI should have been preserved, reasonable steps were not taken to preserve the ESI, and the missing ESI cannot be replaced from other sources. If prejudice results from the loss of the information, the court can only impose measures necessary to cure the prejudice. Only if it is found that a party acted with intent to deprive another party of the information, can it be presumed that the lost information was unfavorable to that party.
The Committee Notes indicate that requests for ESI may require detailed information about another party's information management systems and information sources. In general the Rules put more emphasis on asserting specific facts for proportionality claims and discovery objections.
Judge Jones remarked on the "sea change" in that discoverable information will now both have to be relevant and proportional, and observed that the Rules are silent as to which party has the burden of proving proportionality - the requesting or the responding party.
Judge Jones described the amendments to the FRCP as the most debated ones which have been made in the 33 years he has worked as a lawyer. He described the changes as being the result of discussions between two competing factions: plaintiff's lawyers that sought to prevent any limitations on discovery and corporate interests that were focused on preservation issues in electronic discovery. The federal magistrates and the Sedona Conference also played a role. Judge Artigliere noted that the ephemeral nature of ESI and the expense of maintaining big data were driving factors in changes to the Rules.