It is widely expected that the proposed amendments to the Federal Rules of Civil Procedure will be approved and become effective as scheduled in December 2015. A number of the amendments will have an impact on electronic data discovery.
The common theme of these changes is a threefold emphasis on 1) knowing the client’s electronically stored information; 2) knowing it early in the case; and 3) understanding EDD technology options for data handling. Rather than representing a radical break with current best practices, the amendments provide new impetus to three existing trends.
The most significant EDD-related changes are to FRCP Rules 16, 26, 34, and 37:
• Rule 16 scheduling order on preservation: The Rule 16 order may cover preservation in addition to discovery of ESI.
• Rule 26 proportionality standard: A new proportionality standard for discovery is introduced in Rule 26. Factors include access to the information, the parties’ resources, the importance of the discovery, and whether the burden or expense outweighs its likely benefits.