As those of you reading this well know, many studies and decisions show continued dissatisfaction with the discovery process. Remedies to this dissatisfaction that have gained traction are the ideas of cooperation, proportionality and reasonableness in the discovery process – the very themes that lay at the heart of the proposed amendments to the Federal Rules.
On April 29, 2015, in a letter to the United States Senate and House of Representatives, Chief Justice John Roberts submitted the proposed amendments to the FRCP for final congressional approval. Specifically, C.J. Roberts stated that the amendments “[H]ave been adopted by the Supreme Court of the United States.” This means, absent any legislation to reject or modify the proposed rules, they will become effective December 1, 2015.
Indeed, unless modified by an act of Congress, several new civil procedure rules will be effective this year, certain of which will impact discovery generally, including e-discovery.
For example, as amended, FRCP 37(e) seeks to impose a uniform standard relating to the remedies available by a court when ESI is not properly preserved and prejudice to the impacted party is found. These remedies are, adverse inference, jury instruction or dismissal. Rule 37(e), however, is applicable only when three criteria are met: (1) ESI is lost that “should have been preserved in the anticipation or conduct of litigation;” (2) because of a failure to take “reasonable steps;” and (3) the loss cannot be remedied by “additional discovery” designed to replace or restore the ESI.
Other FRCP amendments emphasize the recurring themes of the importance of cooperation, proportionality, and reasonableness in and the discovery process. For example, FRCP 1 seeks to emphasize the need for cooperative advocacy in discovery. Specifically, the proposed amendment specifies that clients share in the responsibility with the Court for achieving the Rule’s objective:
“[These rules] should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” The idea behind the amendment to Rule 1 is that the express reference to the litigants in the rule itself will prompt litigants and their lawyers to engage in more cooperative behavior.
While it may take more effort to engage in a cooperative, proportional and reasonable discovery process, doing so offers a multitude of benefits for attorneys and their clients, not the least of which may be a less expensive discovery process (i.e., fewer discovery disputes, limited motion practice, decreased potential for sanctions).