Major Federal Rule Changes affecting eDiscovery coming in December

A set of important amendments to the Federal Rules of Civil Procedure approved by the U.S. Supreme Court earlier this year will take effect December 1, 2015 unless Congress acts to block or change them. The amendments to rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84 were driven to a large extent by concerns over the increasing cost of collecting, reviewing and producing electronically stored information (ESI) as well as the perception that the technical and practical issues production of ESI heighten the risk of sanctions.

Among other significant changes, the amendments expand the proportionality considerations currently in rule 26(b)(2)(C)(iii) and make them part of the scope of discovery in rule 26(b)(1). This amendment opens the door to producing parties objecting directly to a discovery request on the basis that it is disproportionate. Under the current rule, a party making that same objection is required to seek a protective order from the court.

A new amendment to Rule 34(e) resolves a circuit split over the standard for imposing sanctions for the failure to preserve ESI. The revised rule adopts a uniform tiered approach that allows a court to impose the most serious sanctions, an adverse inference instruction or a default judgment, only where it finds that a “party acted with the intent to deprive another party of the information’s use in the litigation.”

Tom Allman, former General Counsel and Chair of the Sedona Conference, provides a summary and insightful analysis of the entire set of amendments. The full report from the Committee on Rules of Practice and Procedure is available for download here.

The Cybersecurity Law and Privacy Protection Center recently hosted a panel discussion on these changes and their practical impact on litigation featuring several federal judges, in-house counsel and other practitioners. Return to this webpage for related events and insights on the amended rules and their effects on eDiscovery practice

By |2015-10-13T17:35:16+00:00October 6th, 2015|0 Comments

About the Author:

Brian Ray
Professor Brian Ray has extensive experience in eDiscovery, information governance and data privacy. He and Candice Hoke created and serve as Co-Directors of the Center for Cybersecurity and Data Privacy at Cleveland-Marshall College of Law, where they are Professors of Law. Brian co-founded, with Tim Opsitnick of Jurinnov, the Cleveland eDiscovery Roundtable, an informal group of lawyers, judges and academics that meets monthly to discuss issues surrounding electronic discovery, cybersecurity and data privacy issues. Professor Ray is a member of the Sedona Conference's International Electronic Information Management, Discovery and Disclosure and Data Security and Privacy Liability Working Groups. Professor Ray also is an expert in international and comparative law. His book, Engaging with Social Rights: Participation, Procedure and Democracy in South Africa's Second-Wave (forthcoming Cambridge 2016) provides a comprehensive analysis of the South African Constitutional Court's social rights decisions. He has served as a Fulbright Scholar in South Africa and has published extensively on the law of human rights.

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