By Jim Gill
Since December 1st there have been numerous articles written on what the changes to the FRCP might mean for those of us working in E-Discovery. But if you really want to know the scoop, go straight to the top. The Supreme Court of the United States recently released the 2015 Year-End Report on the Federal Judiciary, and in it, E-Discovery took a leading role. Chief Justice John Roberts weighs in on the recent changes to the FRCP, and here's what he said.
We're All on the Same Team: “The 2015 civil rules amendments are a major stride toward a better federal court system. But they will achieve the goal of Rule 1—'the just, speedy, and inexpensive determination of every action and proceeding'— only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change…. Judges and lawyers [have an obligation] to work cooperatively in controlling the expense and time demands of litigation…. Lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes."
Be Reasonable: “Rule 26(b)(1) crystallizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality. The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need. That assessment may, as a practical matter, require the active involvement of a neutral arbiter—the federal judge—to guide decisions respecting the scope of discovery."
Early Bird Gets the Worm: “The amended rules accordingly emphasize the crucial role of federal judges in engaging in early and effective case management. The prior rules—specifically Rule 16—already required that the judge meet with the lawyers after the complaint is filed, confer about the needs of the case, and develop a case management plan. The amended rules have shortened the deadline for that meeting and express a preference for a face-to-face encounter to enhance communication between the judge and lawyers. The amendments also identify techniques to expedite resolution of pretrial discovery disputes, including conferences with the judge before filing formal motions in aid of discovery. Such conferences can often obviate the need for a formal motion—a well-timed scowl from a trial judge can go a long way in moving things along crisply."
Step Out of the Stone Age: “Recognizing the evolving role of information technology in virtually every detail of life, the amended rules specifically address the issue of 'electronically stored information [ESI].' Rules 16 and 26(f)…require the parties to reach agreement on the preservation and discovery of ESI, [and] amendments to Rule 37(e) effect a further refinement by specifying the consequences if a party fails to observe the generally recognized obligation to preserve ESI in the face of foreseeable litigation. If the failure to take reasonable precautions results in a loss of discoverable ESI, the courts must first focus on whether the information can be restored or replaced through alternative discovery efforts. If not, the courts may order additional measures 'no greater than necessary' to cure the resulting prejudice. And if the loss of ESI is the result of one party's intent to deprive the other of the information's use in litigation, the court may impose prescribed sanctions, ranging from an adverse jury instruction to dismissal of the action or entry of a default judgment."
Knowing is Half the Battle: Chief Justice Roberts suggests judges and attorneys educate themselves on the FRCP amendments and E-Discovery. “Judges must be willing to take on a stewardship role, managing their cases from the outset rather than allowing parties alone to dictate the scope of discovery and the pace of litigation. As for the lawyers, most will readily agree—in the abstract—that they have an obligation to their clients, and to the justice system, to avoid antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship."
For more information on the FRCP changes and other trends for 2016,Download Exterro's E-Discovery Preparedness Almanac .