In April, the Advisory Committee on the Federal Rules of Civil Procedure revised its proposed amendments to the Rules relating to electronic discovery. The Standing Committee approved the current draft of the amendments in late May. The next step towards approval of the proposed amendments will be taken when the Judicial Conference meets in September.
As noted by the Advisory Committee, the primary goals of the proposed amendments were to reduce costs and delays in civil litigation by advancing cooperation among the parties, proportionality in the use of available procedures, and early and active judicial involvement. The Advisory Committee also sought to establish greater uniformity in how federal courts respond to a loss of Electronically Stored Information ("ESI") in litigation, and to relieve the pressures that have caused litigants to over-preserve ESI and over-spend on e-discovery.
The proposed amendments seem to provide a "mixed bag" in terms of meeting the original goals of the amendments – they do offer some improvements to e-discovery procedures, but they fail to address other problems or, in some instances, create new questions and uncertainty regarding e-discovery practice.
First, let's look at what the proposed amendments will likely improve.
1. Rule 26(b)(1) Promotes Tightening the Scope of Discovery and Places a Greater Emphasis on "Proportionality."
In its current proposed form, the amendment to Rule 26(b)(1) would eliminate the oft-cited language that discovery may include information that is "reasonably calculated to lead to the discovery of admissible evidence." The Committee has reasoned that this language (which has existed since 1946) was never meant to define the scope of discovery, but rather, to address the problem of whether parties could seek discovery of hearsay statements, which are typically inadmissible at trial.
The Committee felt that since it now goes without saying that hearsay is discoverable (even if not admissible), the "reasonably calculated to lead to the discovery of admissible evidence" language is overused and misapplied to define the scope of discovery. Therefore, to avoid further confusion (and in an apparent effort to reign in the scope of discovery in this era of heavy data), the new Rule eliminates that language and sets the scope of discovery as including information that is "relevant to any party's claim or defense."
The proposed Rule retains the language that "Information within the scope of discovery need not be admissible in evidence to be discoverable."
Meanwhile, the proposed amendments also place more emphasis on proportionality. The proposed amendment to Rule 26(b)(1) now expressly states that discovery must be "proportional to the needs of the case." Just as important, the proposed amendment delineates the factors for proportionality as including:
- The importance of the issues at stake in the action
- The amount in controversy
- The parties' relative access to the relevant information
- The parties' resources
- The importance of the discovery in resolving the issues; and
- Whether the burden or expense of the proposed discovery outweighs its likely benefit.
Of course, these new Rules will likely result in disagreement and litigation over proportionality in specific cases. But they do provide some additional clarity on the concept and its factors, and seem like a positive step in slowing, or perhaps even reversing, the trend of over-inclusive e-discovery.
2. The Proposed Rules Would Promote Earlier Consideration of E-Discovery Issues.
In practice, e-discovery is not addressed early enough in many cases. As a result, important decisions relating to e-discovery can be made (or missed) at critical phases of the litigation, such as at Rule 26(f) or Rule 16 conferences, when counsel (and the Court) establish the timelines and procedures that relate to e-discovery in the case.
Part of the problem is that the Rules in their current form do not stress or promote strongly enough the early discussion or resolution of e-discovery issues. The proposed amendments to the Rules offer a few significant improvements in this regard.
First, the proposed amendment to Rule 26(d) and Rule 34 would allow for the early service of document requests. Under this revision, parties could serve document requests 21 days after service of the complaint, although the clock for responding to these requests wouldn't start ticking until the Rule 26(f) conference, at which time the requests will be deemed officially "served". The thought behind this change is that if parties are going to have a truly meaningful Rule 26(f) conference (when they are supposed to discuss discovery and e-discovery issues), they should have a better idea of what the scope of discovery will be. As a result, this Rule change is designed to allow parties to have earlier, better-informed discussions about the scope of discovery in the case, any e-discovery issues, and to seek earlier judicial intervention (i.e., at the Rule 16 conference with the Court), if there are any anticipated preservation or production issues
Second, the proposed amendments promote earlier judicial intervention of e-discovery issues. Under the proposed amendments, the Rule 16 conference has been moved up 30 days (so now the conference would be scheduled 90 days after service of the Complaint, rather than 120 days).
In addition, the new proposed Rule 16 now expressly provides that the Court's Scheduling Order may include issues relating to preservation of ESI, as well as agreements reached under FRE 502 (dealing with inadvertent productions of privileged documents). Although Rule 502 Orders have been allowed since 2008, many judges have commented that the Rule is still widely underused. Now that it is specifically highlighted in proposed Rule 16(b)(3), it reminds parties to address Rule 502 issues much earlier in the litigation, when developing their e-discovery plan for the case.
3. The Proposed Rules Seek to Address the Issue of Gamesmanship with Respect to Discovery.
Finally, in order to do away with vague, general objections, the Advisory Committee has recommended revising Rule 34(b)(2)(B) to provide that any objections made in response to a document request must be stated with specificity. Under new Rule 34(b)(2)(C), the responding party must now also state whether any responsive materials are being withheld on the basis of an objection. This is meant to avoid the problem of evasive discovery responses, where the requesting party is uncertain about whether the producing party is withholding the production of certain documents based on its asserted objections.
Time will tell whether these amendments (if adopted) will ultimately reduce cost and delay in civil litigation, but the proposed changes do seem to take postive steps in allowing for greater proportionality and controls on e-discovery, and in promoting earlier and more active action by the parties and the Court with respect to e-discovery.
Click here for Part II... The 2014 Proposed Amendments to the Federal Rules on E-Discovery – What Didn't They Get Right?
Originally published July 30, 2014
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