All posts tagged FRCP amendments

50 States: Civil Procedure Rules in State Court – Part 2

Cue the fanfare…The new and improved rules map is here!

This spring, we worked to update our state ediscovery rules map – looking at each state’s civil procedure rules and how they approach ediscovery. Want to know which states have already adopted the 2015 Federal Rules of Civil Procedure (FRCP) amendments? Which states are still following the 2006 FRCP language relating to ediscovery? What states don’t have any ediscovery provisions whatsoever?

We looked at each of the 50 states (plus the District of Columbia), classifying them into five color-coded areas:

  • A pink state has substantially adopted the 2015 FRCP Amendments. There are three pink states: Arizona, Colorado and Wyoming.
  • A yellow state is actively taking on or considering new rules: either a version of the FRCP or its own. There are four yellow states: Florida, Kansas, Mississippi and Oklahoma.
  • A blue state has adopted and continues to follow the 2006 FRCP Amendments. There are 27 blue states, which includes every state not listed in another category.
  • A green state marches to the beat of its own drum, using unique language and standards. There are 14 green states: Connecticut, Delaware, Georgia, Illinois, Missouri, Nebraska, Nevada, New Hampshire, New York, Pennsylvania, Rhode Island, Texas, Utah and Washington.
  • A grey state signifies that the state has no ediscovery rules in place at this time. There are three grey states: Kentucky, South Dakota and West Virginia.

With so many jurisdictions, we want you to know the restrictions. From Hawaii to Virginia and Florida to Oregon, click each state to view its pertinent statutes and rules, along with suggestions for further reading about that state’s ediscovery protocols.

Ediscovery Rules & Statutes (Not Just a Pretty Map)

As we shared with you in our first blog on the 50 states of ediscovery, it has been a while since our map was updated. Some states made drastic changes, while others were happy with their own status quo. What happened in your state? Here is just a sample of what you will find.

Colorado Climbs Onboard

The Rocky Mountain State changed from grey to pink in 2015 when it adopted the then-upcoming FRCP amendments of the same year. A couple small differences remain: Colorado’s version reads Rule 26 in conjunction with Rule 1 to “secure the just, speedy, and inexpensive determination of every action.” Also, its Rule 37 does not mirror the FRCP.

Connecticut Calls its Own Shots

Some states adopted the 2015 FRCP, some did not and still others came up with their own version. Connecticut did all three, which earned it a swap from blue to green on our map. While Connecticut adopted the 2015 FRCP’s proportionality language, its sanctions wording is similar to that of the FRCP’s 2006 version. Interestingly, the state also includes an ethical requirement of “technological competence” as part of an attorney’s obligation to keep up with changes in the practice of law.

Illinois Gets Ahead of the Game

Illinois’ motto is “State Sovereignty, National Unity” and that sentiment is certainly reflected in its state Rules of Civil Procedure. Its many unique ediscovery provisions means it changed from yellow to green on our map. Illinois shares the FRCP’s emphasis on proportionality, with the state’s committee commenting that this amendment was added primarily to address the discovery of ESI. Illinois’ rules go even further by creating a list of ESI that should not be discoverable due to difficulty, but keeps its eye on the horizon by emphasizing flexibility as technology continues to advance.

Oklahoma: Amendments on the Horizon

Oklahoma adopted the 2006 FRCP in 2010. In early 2017, the state legislature proposed amendments to adopt the 2015 FRCP’s proportionality language and those amendments are still pending. Statute §12-3225 drops “liberally construed” and adds “construed, administered, and employed by courts and parties to secure” the just, speedy and inexpensive determination of action to mimic FRCP Rule 1. Its §12-3226 proposal mirrors the 2015 FRCP Rule 26(b) with one exception: it retains the phrase “reasonably calculated” just before the “relevant and proportional” wording. These proposed changes are enough to bump Oklahoma’s color from blue to yellow.

While the 50 states have rules almost as diverse as the states themselves, it is clear that the FRCP has had a role in shaping state civil procedure models. Over the next year, it is likely that more states will amend their rules to reflect the new FRCP, while others will continue to utilize their own unique standards.

If you practice in state court anywhere across the country, you need to know the discovery requirements, because they may be similar to the new FRCP or vastly different. Keep yourself in-the-know and check out each of the 50 states plus the District of Columbia today on KrolLDiscovery’s Rules and Statutes Map.

50 States: Civil Procedure Rules in State Court – Part 1

The 2015 FRCP Amendments have been in effect for over a year and federal courts have been increasingly vocal in the areas of proportionality, spoliation and sanctions. Have states followed suit?

The last time KrolLDiscovery rolled out a comprehensive look at state ediscovery rules was after the 2006 FRCP Amendments. Back then, we saw that some states had been quick to address ediscovery, with many states adding their own unique flavor. Fast forward to the 2015 FRCP Amendments: Are states adopting the new language in their civil procedure rules or are they taking their own approaches?

At KrolLDiscovery, we have been looking at each states’ civil procedure rules, and we are excited to bring you the first of our updates. Here is the latest on what three states have been doing since the 2015 FRCP Amendments were enacted.

Texas, An Ediscovery Pioneer

The Lone Star State was one of the first jurisdictions to enact ediscovery rules and it lives up to its name by writing its own rules. Currently, its focus is on the spoliation of evidence, as the current rules are not clearly defined. In April 2016, the Texas Supreme Court requested review of a proposal that would solve this problem. No decisions have been made yet, but it has joined federal courts in making this a central discovery issue in 2017.

Examine current information on state ediscovery rules in Texas.

Massachusetts Takes One Step Forward with Rule 1

In Massachusetts, lawmakers initially proposed adopting the 2015 FRCP Amendments and the issue was intensely debated. Ultimately, the state decided to stick with the 2006 language, but made an exception for Rule 1, placing equal responsibility on the parties and the courts to “ensure the just, speedy, and inexpensive determine of every action,” promoting cooperation among litigants.

Look at developments in state ediscovery rules in Massachusetts.

New York Does Its Own Thing

New York has adopted its own ediscovery framework by adding subtle ESI accommodations to its existing rule language. For example, it adds an entire section addressing ediscovery from non-parties and requires counsel for parties who anticipate ediscovery to be “sufficiently versed in . . . their clients’ technological systems to discuss [ediscovery issues] competently” at pretrial conferences.

Learn more about state ediscovery rules in New York.

Over the next month, we will work to update each of the 50 states on our Rules and Statutes Map. If you are tracking ediscovery provisions in state courts, stay tuned throughout the next month for further updates!

Happy Anniversary, FRCP Amendments!

Ediscovery professionals are celebrating the one-year anniversary of the amendments to the Federal Rules of Civil Procedure. With 365 days of applying the new rules, now is a great time to ask: What’s been the impact of the FRCP amendments?

Take the FRCP amendments survey – and enter to win a prize!

How do you think the amendments have impacted ediscovery practices? What about preservation practices in Rule 37(e)? Clawback motions? The questions are simple and we want to know what you think.

After you answer five easy questions about how the FRCP amendments have impacted ediscovery practices, you will be entered to win a Kindle Paperwhite e-reader.

New Resources Available for Interpreting the FRCP

Ediscovery resources

The first couple of months after the Federal Rules of Civil Procedure (FRCP) amendments were enacted in December 2015 changed the ediscovery atmosphere. During that time, it was unknown to practitioners whether the changes to Rules 26(b)(1) and 37(e) would create any reaction by the courts, much less if they would substantially influence the course of discovery. The early opinions became a sounding board as both courts and parties struggled with the challenges of interpreting the new amendments and the impact they would have on their cases.

In just a few short months, the 2015 amendments will be one year old and many courts now have established expectations based on the new rules.  Practitioners can no longer afford to ignore the changes. In order to help practitioners avoid making their case a lightning rod, Kroll Ontrack has compiled a number of useful resources published this summer to help you navigate the current framework.

Summer 2016: New Ediscovery Resources

  • Published in mid-August 2016, Gibson, Dunn & Crutcher’s report, 2016 Mid-Year E-Discovery Update, highlights the current trends of courts in regards to 26(b)(1) and 37(e).
  • Kroll Ontrack’s e-Book, 6 Months of Case Law Under the New FRCP, which is mentioned in the Gibson, Dunn & Crutcher report, gives a six month overview of cases which have had the most impact due to the new amendments.
  • Nationally renowned ediscovery expert, Tom Allman, has released a new treatise entitled, Applying the 2015 Civil Rules Amendments. The article provides useful background information on the formation of the new amendments, as well as an analysis of how the rules are being utilized by the courts.
  • The recent Sedona Conference publication, TAR Case Law Primer, offers a comprehensive overview of the jurisprudence surrounding the use of TAR. The primer also includes a discussion of the use of TAR in an international context.

Don’t miss out on these great new resources!

SCOTUS Approves Proposed FRCP Amendments

On April 29, 2015 amendments to the Federal Rules of Civil Procedure (FRCP) took another step forward in the process. In a letter to U.S. Senate and House of Representatives leadership, Chief Justice John Roberts submitted the proposed amendments to the FRCP for final congressional approval. Chief Justice Roberts stated that the amendments “[H]ave been adopted by the Supreme Court of the United States,” rendering them effective December 1, 2015 absent any legislation to reject or modify the rules. You can find a copy of the Supreme Court’s submission to Congress here.

FRCP Amendments: A Look Back

As I blogged previously in a multi-part series, these amendments have travelled a long and winding road spanning multiple years. After being approved by the Standing Committee in May 2014 and the Judicial Conference in September 2014, the Supreme Court’s blessing was the next major hurdle.

FRCP Amendments: Impacts on Ediscovery

Unless modified by an act of Congress, legal professionals should expect several new civil procedure rules coming soon, with changes to Rule 37(e) likely driving the most impact on ediscovery.

The amendments to FRCP 37(e) seek to impose a uniform standard relating to the remedies available by a court when ESI is not properly preserved.  Rule 37(e) is applicable when three criteria are met:

  1. ESI is lost that “should have been preserved in the anticipation or conduct of litigation,”
  2. Because of a failure to take “reasonable steps,” and
  3. The loss cannot be remedied by “additional discovery” designed to replace or restore the ESI.

After this three part test is established, then a court—finding prejudice to the impacted party—can determine a remedy “no greater than necessary to cure the prejudice.” Only if the court finds intent to destroy ESI do the following grave remedies apply: adverse inference, jury instruction or dismissal.

In addition to these changes, other FRCP amendments emphasize the importance of cooperation, proportionality, and reasonableness in discovery. Make sure you subscribe to “Everything Ediscovery” by Kroll Ontrack for future posts about the new FRCP rules as December 1, 2015 draws near.

Part III – FRCP Amendments: The Long and Winding Road

Where We Are Now

On September 16, 2014, the Judicial Conference officially approved the proposed amendments to the Federal Rules of Civil Procedure. The rules are now pending before the Supreme Court, and provided they are adopted, will be submitted to Congress by May 1, 2015. We are, finally, in the home stretch of rules being adopted – and it is looking more and more likely that the amended Rules will go in to effect December 1, 2015.

The Changes Being Made

As I blogged previously about the FRCP Amendments, there are a number of changes which directly impact ediscovery. The new Rule 1 stresses the cooperation of adverse parties in discovery – while the new Rule 26 ensures that that discovery is proportional to the case. Meanwhile, the new Rule 37(e) allows for court sanctions when ESI is not preserved.

Rule 1 ensures that both courts and parties are now explicitly responsible for just, speedy and inexpensive litigation. This means there is no room for hiding the ball or burying your opponent in documents.

The courts continue to emphasize proportionality – and Rule 26 is the embodiment of this trend. Rule 26(b)(2)(1) now lists specific proportionality factors, including:

  • The importance of the issues at stake
  • The amount in controversy
  • Access to relevant information
  • Resources
  • The importance of discovery in resolving the conflict
  • Burden versus benefit

All of these factors encourage opposing counsel to be reasonable, proportional, and willing to cooperate.

Lastly, the changes to Rule 37(e) now contain two sections:

  • The first section allows a court to respond when one party loses ESI and consequently prejudices the other party. Under the new rule, the court can take reasonable action to cure the prejudice – even if the loss of ESI was not the opponent’s fault.
  • The second section deals directly with the intentional loss of ESI – even when there is no prejudice to the opposing party, the court may assume the ESI was unfavorable or go as far as entering default judgment, among other remedies.

Want to know more? Check out Tom Allman’s paper “The Civil Rules Package As Approved By the Judicial Conference” which explores each and every amendment in depth!

Part II – FRCP Amendments: The Long and Winding Road

After a few twists and turns, we can finally say that there is light at the end of the tunnel and  amendments to the Federal Rules of Civil Procedure (FRCP) are nearing completion.  On May 29 and 30, the Committee on Rules of Practice and Procedure (the “Standing Committee”) adopted the proposed FRCP amendments.

To say the least, this was not the quickest or easiest process, but, with most of it behind us, we are almost finished. The next stop along this trek is the Judicial Conference in September, then the Supreme Court of the United States shortly thereafter, and finally Congress.  If all goes as planned, and it usually does after this point in the journey (fingers crossed), the new rules will go into effect December 1, 2015.

The Hot Ticket Item: Rule 37(e) – Failure to Preserve

The most noted and widely debated rule amendment is the complete overhaul of Rule 37(e).  As previously discussed in FRCP Amendments: The Long and Winding Road, Rule 37(e) has had quite the transformative journey. The new Rule 37(e) entirely replaces the original version and was unanimously approved by the Standing Committee.

The revised rule is designed to ensure a more uniform response from Federal Courts regarding the loss of Electronically Stored Information (ESI). The rule, broken into two sections, gives courts power to undertake “measures” – AKA sanctions and other similar procedures – when a party loses ESI because they failed to take “reasonable steps” to preserve it during the anticipation of impending litigation.

The first section, Section 37(e)(1), allows a court to take measures when a party is prejudiced by the opposing party’s loss of ESI. The court is permitted to take reasonable action that sufficiently cures the party’s prejudice even though the loss of the ESI may not have been the opposing party’s fault.

Similarly, the second section, Section 37(e)(2), authorizes a court to take measures when a party intentionally loses ESI.  However, it does not require a showing of prejudice to the adverse party. The court can assume that the ESI was unfavorable, instruct the jury that the ESI was unfavorable, or grant default judgment or dismiss the case.

Section 37(e)(1) and Section 37(e)(2) are not alternatives to one another and can both be used in combination by the court if necessary.  Overall, Rule 37(e) will offer more uniformity in the measures Federal Courts take when a party fails to preserve ESI.

Ediscovery Related Amendments: Rules 1 and 26

Other rule amendments relevant to  ediscovery  are Rule 1 and Rule 26. Rule 1 was amended to stress the importance of cooperation between adverse parties and the court to promote a “just, speedy, and inexpensive” resolution to every action and case. Additionally, the newly revised Rule 26(b)(1) aims to ensure that the scope of discovery is proportional and relevant to the case. By combining Rule 26(b)(2)(c)(iii) with Rule 26(b)(1), the importance of an appropriate scope is emphasized and will no longer be easily overlooked.

Additional Amendments: Rules 4, 16, and 34

Amendments to Rules 4, 16, and 34 were also adopted by the Standing Committee during the May 2014 meeting. For a full draft of the entire amended rules package – including the previously discussed rules – see Tom Allman’s latest FRCP amendments treatise. Tom is a former general counsel, current adjunct law professor, and foremost ediscovery rules guru, and with his permission, Kroll Ontrack has posted Tom’s paper for our blog readers’ enlightenment.

Before we know it, December 1, 2015, will be here and we will have a whole new set of FRCP guidelines for ediscovery.  With that said, stay tuned to theediscoveryblog.com and ediscovery.com for all the latest developments on the FRCP amendments and ediscovery.

FRCP Amendments: The Long and Winding Road

Just like in the Beatles song, the long and winding road leading to Federal Rules of Civil Procedure (FRCP) amendments took another turn on April 10th and 11th when the Advisory Committee considered the proposed rules package at its meeting in Portland, Oregon. The rules package being considered at the Portland conference was the result of revisions on the original amendment proposals after an active public comment period that ran from August 2013 through February 2014. While the rules package contains several important amendments relating to ediscovery, the most controversial proposal relates to the “failure to preserve” section in Rule 37(e). This language was the most hotly contested area throughout the public comment period. As such, there was much anticipation surrounding the Advisory Committee’s Portland meeting.

Major Ediscovery Milestones in Portland

The Advisory Committee unanimously approved a draft of Rule 37(e)…but not the draft that was issued in late March (after the public comments). A shortened Rule 37(e) – limited to ESI only – was drafted during day one of the Portland meeting and unveiled to the Advisory Committee only minutes before meetings commenced on day two. The fluidity of the process is exhibited by the fact that no Committee Note accompanied the revised Rule 37(e). Instead, when the Advisory Committee unanimously adopted it, the motion included a provision that a Committee Note be drafted prior to submitting a package to the Committee on Rules of Practice and Procedure (the “Standing Committee”).

The Best Possible FRCP Amendments Tour Guide

A full draft of the entire rules package – including the new, shortened Rule 37(e) – can be found in Tom Allman’s latest version of his FRCP amendments treatise. Tom is a former general counsel, current adjunct law school professor, and foremost ediscovery rules guru, and with his permission, Kroll Ontrack has posted Tom’s paper for our blog readers’ edification.

The Next Stop on this Incredible Journey

On May 29th and 30th, the Standing Committee is scheduled to review the Advisory Committee’s recommendations, after which the proposals (if approved) will be submitted to the Judicial Conference and Supreme Court. The earliest that any FRCP amendments could go into effect is December 1, 2015 (assuming that Congress does nothing to intervene).

Buckle your seat belts, there are likely to be a few more twists and turns before we reach the door of new FRCP guidelines for ediscovery.  Stay tuned to theediscoveryblog.com by Kroll Ontrack for all the developments.

 
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