The Chief Justice on eDiscovery

On December 31, 2015, Chief Justice Roberts' issued the "2015 Year-End Report on the Federal Judiciary". Roberts notes that the Advisory Committee that worked on the changes to the Federal Rules of Civil Procedure which became effective on December 1, 2015, had four main goals:

1. promote cooperation amongst attorneys.

2. focus discovery on resolving cases.

3. encourage the participation of judges in early case assessment.

4. "address serious new problems associated with vast amounts of electronically stored information."

Roberts remarks upon the changes to FRCP 16 and 26(f) which require parties to reach agreements on the discovery and preservation of ESI in case management plans and discovery conferences. He also discusses how the change to FRCP 37(e) allows courts to take measures to cure prejudice resulting from the failure to take reasonable precautions to preserve ESI when litigation is anticipated. Roberts notes that when ESI is lost because of intentional actions on the part of one of the parties, sanctions can be imposed, including adverse jury instructions or default judgments.

Perhaps just as interesting are the statistics cited in the Appendix to the Chief Justice's report. Cases filed in federal district courts declined 6% in 2015, and diversity cases (those having jurisdiction in federal courts because the parties are from different states, rather than because they involve issues regarding the Constitution or federal law) declined 14%. Bankruptcy cases fell more than 10%, but while criminal cases more or less held steady.

From the very top, the federal judiciary is getting the message that the changes to the FRCP should be used to encourage the trend towards reducing civil litigation. The most memorable part of Roberts' report is his comparison of contemporary civil legal disputes to the archaic practice of duelling. He admonishes that civil cases should not be allowed to "degenerate into wasteful clashes over matters that have little to do with achieving a just result."