Straight Talk: FRCP Rule Changes in Layman’s Terms

Here at Exterro, we recently closed a multi-year software licensing opportunity with a large city government. We began talking with them about their acquisition of e-discovery software in April of 2015, and from the very onset they kept saying, “Our goal is to have software implemented by December 1, 2015 when the amendments to the FRCP (Federal Rules of Civil Procedure) take effect.”

But there's nothing in the amendments that states, “City governments must have an e-discovery software solution up and running by December 1, 2015.” So what was really driving this prospective (and now current) client, and how might the same impetus be meaningful to you?

This blog entry is for the legal layman, so we'll start here. The Federal Rules of Civil Procedure (which I’m going to refer to as “The Rules”) are a large body of rules written and recommended by a committee and ultimately approved by the Supreme Court. Simply put, The Rules prescribe how federal lawsuits are governed.

The Rules are constantly evolving, and many parts change every few years. That is, periodic amendments are not exclusive to e-discovery—there just happen to be revisions this time around that impact it. The Rules are intentionally vague, with the idea that judges are not constrained by rigid directives, and judicial rulings ultimately determine how they are applied.

There are many who will try to interpret what these rule changes mean, but very little can be known definitively at this point. It may take several years before the real impact is understood—by which time they may be revised again.

As a sidebar, each state also has its own version of the Federal Rules of Civil Procedure. The Oregon Rules of Civil Procedure, for example, dictate how lawsuits are governed in Oregon state court. Many states closely follow the federal rules, but not all. It’s important not to assume that these rules govern all lawsuits universally.

There are three items of interest related to the upcoming changes—one generic and two specific to e-discovery.

First, the generic rule: Rule 1

On December 1, Rule 1 will state:
“These rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

According to the Committee note, this language emphasizes that not only courts, but also the parties, share responsibility in ensuring efficiency and fairness.

This means parties should work together and avoid prolonging litigation in ways that are unjust, slow, or expensive. While there is no explicit penalty for failing to follow this rule, judges may take issue with non-compliance and address it in their rulings. Over time, this may have meaningful impact—perhaps.

The next two changes, Rules 26(b)(1) and 37(e), are specific to e-discovery.

On December 1, Rule 26(b)(1) will focus on limiting the scope of discovery and will state:

Scope in General: Unless otherwise limited by court order, parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. This includes consideration of factors such as the importance of the issues, the amount in controversy, access to relevant information, resources, and whether the burden or expense outweighs the benefit. Information need not be admissible to be discoverable.

The most meaningful revision here is the inclusion of “proportional to the needs of the case” and the removal of language referencing “any” documents or information.

This represents a significant shift—from “any” to “need.” However, the real-world impact will depend on how practitioners and courts apply it. Ideally, it will reduce unnecessary discovery and allow focus on the merits of the case rather than excessive data collection.

On December 1, Rule 37(e) will state:

Failure to Preserve Electronically Stored Information (ESI): If ESI that should have been preserved is lost because a party failed to take reasonable steps, and it cannot be restored or replaced, the court may:

1. Order measures no greater than necessary to cure the prejudice; or
2. If there is intent to deprive another party of the information, the court may:
   • Presume the lost information was unfavorable
   • Instruct the jury accordingly
   • Dismiss the case or enter default judgment

Previously, the rule allowed protection under “exceptional circumstances” for loss due to routine, good-faith system operations.

The shift to “failed to take reasonable steps” is significant and concerning.

First, it is intentionally vague—“reasonable steps” is open to interpretation. Second, it is highly likely that many organizations are already falling short of this standard.

This rule introduces real risk, as sanctions are now explicitly tied to failure in preserving ESI.

In light of these changes, organizations must evaluate how they are handling data preservation and identify any gaps.

And when you're ready, consider reaching out to Exterro to explore how technology can help strengthen your approach.

For further insight into how these rule changes impact e-discovery and how technology can help you leverage them effectively, download Exterro’s white paper:
3 FRCP Rule Changes You Need to Know!