TOMORROW: THE NEW WORLD OF eDISCOVERY


Tomorrow the amendments to Federal Rules of Civil Procedure will take effect, as previously noted on this blog. There will be an unusual number of webinars on Tuesday and later this week discussing the changes, and I will try to report back on what I learn. Amendments are being made to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84. Here's a capsule summary of the amendments to first half of these.

Rule 1 - The rules no longer have to just be construed and administered in order to secure the just, speedy, and inexpensive determination of every action, but have to be employed toward this end by the court and the parties. The comments emphasize the 'cooperative and proportional' use of procedure, but note that no new sanctions are created by the change.

Rule 4 - A case can now be dismissed 90 days - instead of 120 - after a complaint is filed for failure to serve a defendant.

Rule 16 - scheduling orders are now due 60 days (no longer 90) from the time of a defendant's first appearance, or 90 (not 120) from the time the complaint is served. The order can now provide for the preservation of ESI in addition to its disclosure and discovery, and agreements that the parties reach on privileged material under FRE 502 can be included in the scheduling order.

Rule 26(b)(1) - the Scope of Discovery is no longer just any non-privileged material relevant to claims and defenses, but must be proportional to needs of the case, considering the importances of the issues at stake, the amount in controversy, the resources of the parties, the parties relative access to relevant information, the importance of the discovery in resolving issues, and whether the burden and expense of the discovery outweighs its likely benefit. Under Rule 26 (b)(2) the court could previously on a party's motion or its own limit discovery if the burden and expense outweighed its likely benefit considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues, and extent to which discovery would help resolve those issues. The comments somewhat play down the effect of the amendment and note that the present amendment is in part a reversion to amendments adopted in 1983. They also state that ". . the change does not place on the party seeking discovery the burden of addressing all proportionality considerations. Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional." Interestingly the comments specify that the provision about the parties relative access to relevant information is meant to address situations of information asymmetry and notes that the burden of discovery will weigh heavier on a party with more information. I personally suspect this may be the most momentous change of all. Should this make it easier for plaintiffs with limited resources to take on big corporation defendants?

Rule 30 - oral depositions will fall under the added recognition of proportionality in Rule 26(b)(1).

Rule 31 - written depositions will fall under the added recognition of proportionality in Rule 26(b)(1).


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