To some of you, it’s old news. To others, well, let’s just pretend that you were just about to read that law journal article that would have explained everything. We’re talking about the amendments to the Federal Rules of Civil Procedure that became effective as of December 1, 2015. You know all about them, right?
Thought so. So, we won’t give you all a drawn-out verbose explanation of what’s different. Let’s just focus on the highlights:
- Change to Rule 26(b)(1):
- What was added: language about how discovery needs to be proportional to the needs of the case and ensuring the burden/expense does not outweigh the benefit (which have, really, been part of general discovery rules all along).
- What’s gone now: jargon concerning discovering the existence of documents, custodians, etc. This, too, is all pretty obvious, so it looks like the drafters decided it’s not really needed.
- Change to Rule 37(e):
- Title Change: Failure to Preserve Electronically Stored Information.
- What was added: suggested ways for the Court to handle a party that failed to take “reasonable steps” to preserve ESI for litigation that cannot be replaced. Intent has to be considered before imposing sanctions; lack of intent means very limited remedies.
- What’s gone now: language that the Court should go easy on a party if the failure to preserve ESI was just an honest mistake absent exceptional circumstances.
What this means for you, Madam Attorney:
If you and your clients have already been following the best practices for electronic discovery, (pat yourselves on the back!), the new rules should not impact your usual practice in the least. For those out there who have not been quite the scholars of eDiscovery, hopefully the changes to the rules make things a little more clear, because it could be another 9 years before we get another set of revisions.
Here’s a link to the Federal Rules of Civil Procedure so you can check out the changes for yourself: https://www.federalrulesofcivilprocedure.org/frcp/
If you liked this article you might want to check out The Ethics of eDiscovery.
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