Highlights from “Are Controversial Changes to the eDiscovery Rules Regarding Preservation and Proportionality on the Horizon?”

Here are some brief highlights from today’s webinar on proposed changes to the Federal Rules of Civil Procedure held by the eDiscovery Education Center and sponsored by LexisNexis.  The speakers were Michael R. Arkfeld, Judge John M. Facciola, Craig D. Ball, and Sean R. Gallagher.  The webinar was an hour long and packed with information and opinions — this is just a small sample.  The full webinar will be available for purchase within two weeks here.

The proposed changes will be open for public comment August through February.  The earliest that the new rules could go into effect is December 2015.  Gallagher encouraged people to get involved, and said the rules are still in play.

Proposed changes to 37(e) on failure to preserve discoverable information attempt to provide more clarity on the issue of sanctions.  Facciola said that fear of sanctions caused people to preserve everything.  The changes contemplate curative measures and provide factors for assessing the party’s conduct before imposing serious sanctions.  Ball said nobody has been seriously sanctioned in the past for making a good faith effort that went awry, but the new rules will put and end to hand wringing over the possibility of severe sanctions over negligence without willful misconduct.  Gallagher said the really egregious cases get the most attention, but the challenge is to create rules for more ordinary cases.  Litigants will find more comfort in having national rules instead of applying results from cases from different jurisdictions.

Ball raised the point that the new rules don’t seem to provide for sanctions if a party tries to destroy evidence but is unsuccessful in doing so.  Arkfeld questioned whether the rules would make sanctions more complicated to determine.  Facciola didn’t think so since the factors are easy to apply, and he said making them explicit eases the pain for everyone.  He said there have been some complaints because “anticipation of litigation” isn’t defined, but that would be too hard to do.  Gallagher said there have been similar concerns about “willful.”  Arkfeld asked whether the proposed change would give a pass to organizations so they don’t have to invest in controlling their ESI.  Ball said there is some concern, but the new rule doesn’t fundamentally change what judges were already doing.

Proposed changes to rule 26(b)(1) involve addition of language about proportionality and removal of language about discovery of inadmissible information that might reasonably be expected to lead to discovery of admissible evidence.   Facciola said this change is extremely important.  Ball was somewhat less excited about it, and raised concerns about whether meta data and information about companies’ IT systems would no longer be discoverable.  Gallagher was surprised that there hasn’t been more comment on the changes to rule 26, and thought there would be complaints in the future about the part that was removed.

Facciola said the language about proportionality was a technical change where things were moved around to make it clear that all discovery is subject to proportionality.  Gallagher thought that change would be significant to litigants, with more litigation over the meaning of proportionality and how it is applied, but that’s not necessarily a bad thing since things will become more efficient over the long-term.  Ball agreed and expressed concern about the possibility of litigants using their own interpretation of proportionality to limit the amount of preservation they do.  He warned that proportionality should be based on the opinion of a judge who is well-informed about the case, not the producing party’s opinion.

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