All posts tagged Tom Allman

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!

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 by Kroll Ontrack for all the developments.

Rulemaking Efforts Move Forward

Efforts to amend the Federal Rules of Civil Procedure took another step forward last week. On June 3, 2013, the Standing Committee on Rules of Practice and Procedure (“the Standing Committee”) approved a package of proposals to change several of the Federal Rules relevant to ediscovery. The package will be released to the bench and bar for a six-month public comment period on August 15, 2013.

The package approved by the Standing Committee was first adopted by the Civil Rules Advisory Committee (“The Rules Committee”) during its April 2013 meeting. The package combines nearly three years of initiatives handled by the Discovery Subcommittee and the Duke Subcommittee following the Duke Litigation Review Conference in May 2010. The package contains the following:

  • An amendment to Rule 1, addressing the issue of cooperation in discovery
  • Amendments to Rule 16 & 26(f), including preservation considerations as a component of discovery plans and scheduling orders
  • Amendments to Rule 26(b), adding proportionality to further define the scope of discovery
  • Amendments to Rules 30, 31, 33 and 36, imposing or reducing numerical limits on interrogatories, oral or written depositions, and requests to admit
  • An amendment to Rule 34, requiring greater specificity in objections to requests to produce
  • An amendment to Rule 26(c), further clarifying the courts authority to order cost-shifting
  • A replacement rule Rule 37(e), aiming to create a national, uniform standard for culpability with regard to spoliation sanctions

Following the comment period, public hearings will be held November 7, 2013 in Washington, January 9, 2014 in Phoenix and early February 2014 in Dallas. For the full text and comments about the Rules Package, check out the May 2013 Report of the Rules Committee to the Standing Committee.

Looking for more on this hot topic? Don’t miss Kroll Ontrack’s June 12th webinar,  Are Your Ediscovery Practices Ready for FRCP Amendments?, hosted by state and Federal rules expert Tom Allman. Additionally, Tom wrote this article with more details on the Rules Package.