Shapiro, Lifschitz & Schram

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Skip Kriss – Executive Vice President, The Richmond Corporation

New Amendments to Federal E-Discovery Rules May Reduce Litigation Costs

On December 1, 2015, the amendments to the Federal Rules of Civil Procedure (the “FRCP”) recently adopted by the U.S. Supreme Court became law, and were made applicable to every case pending in any U.S. federal district court. The new amendments include changes to FRCP rules that govern the preservation and production of electronically stored information (“ESI”) and will impact electronic discovery (“e-discovery”) practices in litigation and possibly companies’ information governance procedures. The changes to e-discovery law were also designed to protect litigants from expensive and expansive discovery being imposed on them without adequate judicial oversight, and have great potential for reducing these often exhausting and sometimes prohibitive costs.

In 2010, the Federal Judiciary Advisory Committee on Civil Rules (the “Committee”), at the request of the Federal Judiciary Standing Committee on Rules of Practice and Procedure, sponsored a conference at Duke University Law School where judges and legal professionals gathered to discuss and deliberate potential improvements to the federal civil litigation process to further the purpose and objectives of the Federal Rules, which are to “secure the just, speedy, and inexpensive determination of every action and proceeding.” Following the two-day conference, Committee members produced a report in which they acknowledged the “near-unanimous agreement . . . that the disposition of civil actions could be improved by advancing cooperation among parties, proportionality in the use of available procedures, and early judicial case management.”[1]

The new amendments include changes to several rules relating to ESI and e-discovery, which include, but are not limited to, Rule 1, governing cooperation between the parties; Rule 26, governing proportionality of discovery;[2] and Rule 37, governing e-discovery and the legal penalties, or sanctions, applicable to electronic data loss.

Cooperation

The language added to Rule 1 of the FRCP focuses on both the litigants’ and courts’ responsibility for just, speedy, and inexpensive litigation. According to the Committee, this amendment was intended to “make clear that parties as well as courts have [this] responsibility.”[3] Judges who believe a party is manipulating the e-discovery process in a way that prolongs litigation or otherwise using it to increase an opponent’s expenses can now cite to this new Rule 1 as a means of rectifying the undesirable behavior. However, there is no new or independent source of sanctions created by this amendment.

Proportionality

The new amendments to Rule 26 of the FRCP focus on limiting the scope of discovery and restore proportionality factors that aim to keep e-discovery costs aligned with the value of the case. The proportionality factors include, among others, consideration of (i) the issues at stake in the action, (ii) the amount in controversy, (iii) the parties’ access to the relevant information, and (iv) the importance of the discovery of ESI in resolving the case’s issues.

Sanctions

The Committee recognized a significant split among the federal courts with regard to the conditions required for imposing sanctions in the event of data loss and document spoliation. To address this lack of uniformity among the federal circuits, the Committee completely re-wrote Rule 37(e) of the FRCP to introduce more clarity regarding the applicability and severity of such sanctions. Particularly, the amendments establish an opportunity for the parties to correct their failures to produce relevant ESI and provide that sanctions may only be issued when the judge finds that a party acted “with the intent to deprive another party of the information’s use in the litigation.”[4]

In promoting cooperation and proportionality in e-discovery and clarifying the rule regarding the issuance of sanctions, the FRCP amendments should be welcomed by corporate litigants that operate using mainly electronic media, since they may see a decrease in their ESI discovery costs.

 

[1] Committee on Rules of Practice and Procedure, Report of the Judicial Conference Committee on Rules of Practice and Procedure to the Chief Justice of the United States and Members of the Judicial Conference of the United States, Appendix B at B-2 (Sept. 2014) (the “Committee Report”).

[2] The amendment actually re-introduces proportionality as a key factor in propounding discovery requests –– proportionality factors were originally present in Rule 26 but were eliminated in 1993.

[3] Committee Report at B-13.

[4] Committee Report, Proposed Rule 37, at B-58.

Found In: Articles, DISCOVERY

Did You Know . . .

Members of the SLS trial group have tried in excess of 50 jury trials and 75 bench trials?

The SLS construction group has worked on sports stadiums across the country including Orioles Park in Baltimore and Paul Brown Stadium in Cincinnati?

The SLS construction group has worked on power plant projects across the country?

In 2007 SLS was selected for an Honorable Mention as one of the Best Places To Work in Washington DC?

Ron Shapiro, Steve Schram and Judd Lifschitz have all been selected as SuperLawyers by Law and Politics?

The SLS office building is an historic townhouse constructed in the late 1800s?

SLS has been selected by Martindale-Hubbell as a Preeminent Law Firm?

SLS trial lawyers have argued appeals in the U.S. Circuit Courts of Appeal for the 4th, 5th, 9th, D.C. and Federal Circuit?

SLS trial lawyers have been lead trial counsel in cases in Arizona, California, District of Columbia, Florida, Louisiana, Maryland, New Jersey, New York, North Carolina, Oregon, Texas, and Virginia, - to name just a few?

Virtually all the cases that SLS trial lawyers mediated have been favorably settled at mediation?

The transactional group at SLS was lead counsel on one of the largest, most complex mixed-use projects in downtown Washington, DC involving 4 lenders and 6 property owners?

In appreciation for the outstanding efforts of each of its employees during 2007, SLS gave everyone (attorneys, paralegals, and staff) a 4 day/3 night expense paid trip to Key West, Florida?

The transactional group at SLS has represented tenants in more than 200 retail leases in the Mid-Atlantic region?

Every attorney in the transactional group at SLS has at least 15 years experience?

The transactional group at SLS has represented developers in the purchase, construction, financing and/or sale of more than 75 multi-family apartment projects?

The transactional group at SLS has represented real estate investors and developers with respect to property in Pennsylvania, West Virginia, Delaware, Maryland, the District of Columbia, Virginia, North Carolina, South Carolina, Georgia, Florida, Texas, Tennessee, Michigan and the U.S. Virginia Islands?

Attorneys in the transactional group at SLS have represented eight national banks in commercial real estate loans?

Attorneys in the transactional group at SLS have represented the FDIC, the Resolution Trust Corporation and several banking institutions in loan workout transactions throughout the Mid-Atlantic region?

The transactional group at SLS has represented homebuilders and commercial real estate developers in work-outs of individual loans and also for work-outs of large portfolios involving dozens of properties in several states?

The trial lawyers of SLS have numerous reported decisions to their credit?