Key Changes in E-Discovery

On December 1, 2015, proposed amendments to the Federal Rules of Civil Procedure (FRCP) (which were last amended in 2006) became effective, as they were not rejected or modified by congressional legislation. The now effective amendments take into account not only the more “exotic” sources of electronically stored information (ESI) such as smartphones and the cloud, but also emphasize the value of “cooperation among parties, proportionality in the use of available procedures and early judicial case management.”[i] The key changes related to discovery will impact early judicial case management, the standard for proportionality and spoliation sanctions.

Under the amended FRCP, there will be an increased need for skilled lawyers who fully understand their clients’ data environments. This knowledge is necessary as early as when the duty to preserve is triggered and certainly at the meet-and-confers with the other parties. At those meetings where the parties hash out their own views and proposals on the proper “disclosure, discovery or preservation” protocols for the ensuing ESI production, the attorneys who have the best handle on the case’s merits as well as proportionality considerations will be in the best position to advocate for a scheduling order that can reduce eDiscovery costs (the main culprits being over-preservation and over-production) and minimize the risks of Rule 37(e) sanctions for their side.