Part III – FRCP Amendments: The Long and Winding Road

Tuesday, October 7, 2014 by Thought Leadership Team

Where We Are Now

On September 16, 2014, the Judicial Conference officially approved the proposed amendments to the Federal Rules of Civil Procedure. The rules are now pending before the Supreme Court, and provided they are adopted, will be submitted to Congress by May 1, 2015. We are, finally, in the home stretch of rules being adopted - and it is looking more and more likely that the amended Rules will go in to effect December 1, 2015.

The Changes Being Made

As I blogged previously about the FRCP Amendments, there are a number of changes which directly impact ediscovery. The new Rule 1 stresses the cooperation of adverse parties in discovery – while the new Rule 26 ensures that that discovery is proportional to the case. Meanwhile, the new Rule 37(e) allows for court sanctions when ESI is not preserved.

Rule 1 ensures that both courts and parties are now explicitly responsible for just, speedy and inexpensive litigation. This means there is no room for hiding the ball or burying your opponent in documents.

The courts continue to emphasize proportionality – and Rule 26 is the embodiment of this trend. Rule 26(b)(2)(1) now lists specific proportionality factors, including:

  • The importance of the issues at stake
  • The amount in controversy
  • Access to relevant information
  • Resources
  • The importance of discovery in resolving the conflict
  • Burden versus benefit

All of these factors encourage opposing counsel to be reasonable, proportional, and willing to cooperate.

Lastly, the changes to Rule 37(e) now contain two sections:

  • The first section allows a court to respond when one party loses ESI and consequently prejudices the other party. Under the new rule, the court can take reasonable action to cure the prejudice – even if the loss of ESI was not the opponent’s fault.
  • The second section deals directly with the intentional loss of ESI – even when there is no prejudice to the opposing party, the court may assume the ESI was unfavorable or go as far as entering default judgment, among other remedies.