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  • Noteworthy Changes to the Federal Rules of Civil Procedure Regarding E-Discovery

    The proposed amendments to the Federal Rules of Civil Procedure (“Rules”) we have all been waiting for have finally been approved by the Committee on Rules of Practice and Procedure (“Standing Committee”). Before these amendments, the most recent revisions of the Rules occurred in 2006 to include e-discovery, and because of the continuing increase in the use of e-discovery in litigation, the latest amendments have significant effects on e-discovery and preservation requirements. The amended Rules include Rules 1, 4, 16, 26, 30, 31, 33, and 34 and a rewritten version of Rule 37(e).

    The most important of these changes are those made to Rules 16, 26 and 37. According to the meeting minutes, the revisions to Rule 16 read, “[t]he time for the scheduling conference is set at the earlier of 90 days after any defendant has been served, down from 120 days in the present rule, or to 60 days after any defendant has appeared, down from 90 days in the present rule. But the proposal also adds, for the first time, a provision allowing the judge to set a later time on finding good cause for delay.” The reduced time limit in Rule 16 speeds up the trial process but limits the time that attorneys have to prepare their cases.

    Rule 26(b)(1) deals with the proportionality of discovery and states that information is discoverable if “it is relevant to any party’s claim or defense and is proportional to the needs of the case.” The Rule continues to explain that,

    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, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

    The amendments to the rewritten version of Rule 37(e) outline the expectations of the duty to preserve electronic evidence and the repercussions of not fulfilling these duties. Most importantly, they address and expand on the “Safe Harbor” provision already existent within the Rule. The changes to the Rule regarding this provision set out to provide a uniform set of standards for federal courts regarding spoliation of electronic data, specifically addressing what constitutes “in bad faith” or “willful” behavior that is worthy of sanctions. These changes will provide guidelines for both companies preserving data, and courts overseeing cases regarding data preservation and spoliation.

    The changes to Rule 37(e), Failure to Preserve Electronically Stored Information, state,

    [i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery, the court may:

    (1) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice;

    (2) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

    (A) presume that the lost information was unfavorable to the party;

    (B) instruct the jury that it may or must presume the information was unfavorable to the party; or

    (C) dismiss the action or enter a default judgment

    These amendments must now be approved by the Judicial Conference in September 2014. If approved, these changes are guaranteed to have significant effects on the way e-discovery is handled in litigation.

    Stay tuned for any updates on the progress of these proposed amendments.

    If you or your institution has any questions or concerns regarding e-discovery related issues, please email Cynthia A. Augello at caugello@cullenanddykman.com or call her at (516) 357-3753.

    A special thank you to Cathryn Ryan, an intern at Cullen and Dykman LLP, for her assistance with this blog post.