A draft of preliminary changes to the rules regarding electronic discovery in federal civil suits is now open for public comment. The proposed amendments to the Federal Rules of Civil Procedure (FRCP) were prepared by the Committee on Rules of Practice and Procedure of the U.S. Judicial Conference. Among other things, the changes address scheduling orders, scope of discovery, document production, and sanctions.
The importance and expectation of cooperation was established in the current rules. The proposed changes would facilitate and encourage that cooperation. For example, they would require that the parties meet face-to-face or by other means of direct, simultaneous communication and would allow them to schedule those conferences earlier. This would likely significantly increase the involvement of the courts early in cases, explained Bennett Borden and Amy Frenzen of Drinker Biddle & Reath LLP in a recent Modaq article.
A great deal of the discussions regarding the changes have centered on the duty to preserve, how and when it is triggered, and its scope. The new rules would strengthen the court’s ability to limit discovery based on proportionality by moving this under the section about scope. Bordon and Frenzen pointed out that this would also affect preservation, because “it would allow a party to make and defend preservation decisions based upon the proportional benefit of the information compared to the burden of preserving as well as producing it.”
In addition, the new rules regarding discovery sanctions would add a layer of protection to preservation decisions. Sanctions would be imposed, in most situations, only if the party’s failure to preserve or produce documents was “willful or in bad faith” and “caused substantial prejudice in the litigation.” This proposed amendment protects reasonable preservation and provides clearer guidance on which sanctions can be imposed, whereas the imposition of sanctions currently varies widely among circuits.
Public hearings have been held in Washington, D.C., Phoenix, and Dallas. Comments on the proposed changes may be submitted until February 15, 2014. December 15, 2015, is the target effective date for the final rules.