In December 2006, the Federal Rules of Civil Procedure (FRCP) were amended. Practical changes were made to the discovery rules, introducing the management of electronically stored information (ESI). eDiscovery was defined in Federal Rule 34 (a) (1) (A) as “any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained … directly.”
Since that time, ESI continues to be the hot topic of discovery requests. Lawyers have been struggling with the lingo and technical requirements, shying away from a foreign universe overtaken by savvy litigators and eDiscovery professionals, and various government agencies that are extremely aggressive in taking control of discussions pertaining to the preservation, collection, review and production of ESI.
eDiscovery isn’t going away. The December 1, 2015 amendments to the FRCP reaffirm this certainty. The changes, which sprouted from a process spearheaded by leading judges, lawyers and academics, are aimed at making the courts more accessible by monitoring escalating costs and delays driven by eDiscovery in litigation and government investigations. As the volume of ESI keeps growing exponentially, so have the costs of storing, organizing, searching and sharing that information. Concerns were raised that this problem undermined meaningful access to the courts. Therefore, the changes to the Rules reinforced the concept of proportionality, balancing the costs of sharing information with the objective of speedy and affordable disposition of legal actions.
A few key points of the FRCP revisions are:
- Rules 4 and 16 accelerate the issuing of scheduling orders down from 120 days to 90 days, and once the defendant has appeared, the timeframe goes to 60 days. The scheduling conference must also happen in person, dropping the criteria “telephone, mail or other means”. The faster timelines require the ability to quickly identify ESI sources, so that the parties can take control of the scheduling conference, and discuss proportionality and the scope of discovery;
- Rule 26 emphasizes proportionality: for information to be discoverable, it must be both relevant to a party’s claim or defense and proportional to the needs of the case;
- Rule 34 introduces production timing, which, along with Rule 16, will force parties to address eDiscovery early in the process, and result in speedier case timelines;
- Rule 37 specifies that the parties take reasonable steps to preserve ESI, and curative measures will be unavailable where ESI was lost or destroyed outside a party’s control. Efforts to restore lost ESI should be proportional to the importance of the ESI to the claims or defenses, which clearly removes the burden of over-preservation of ESI on the parties.
As new methods of digital communication are developed, the universe of potentially discoverable ESI will continue to expand. The added emphasis on proportionality warrants that resource-constrained parties have an equal access to the courts. Leading law firm members and eDiscovery providers have agreed that the FRCP amendments were necessary, but the success of the revisions depends, as previously noted by the Sedona Conference Cooperation Proclamation, on the cooperation of the parties, in conjunction with the courts’ willingness to play a vital role in making the rules work. Metropolitan Corporate Counsel recently published a special section, “Perspectives on Procedure: A Civil Rules Roundtable,” discussing changes to the Rules. RVM’s Managing Director, Sal Manusco discussed the impact of Rules 4 and 16 in his thought piece entitled “Early and Often.”
Since the goal of the rules is to achieve a “just, speedy and inexpensive determination of every action,” the continued commitment to the spirit of the rules changes in the day-to-day practice will ensure fairness, time and cost-efficiency.