The 2015 Amendments to the Federal Rules of Civil Procedure: Guide to Proportionality in Discovery and Implementing a Safe Harbor for Preservation

Abstract

Amendments to the Federal Rules of Civil Procedure (FRCP) will take effect on December 1, (the 2015 Amendments) unless Congress acts to modify or reject them, which is highly unlikely.1 Collectively, the changes are designed to lower the costs of litigation by 1) providing judicial tools to encourage and enforce proportional discovery limited to information relevant to claims and defenses, and 2) reducing costs associated with over-preservation and ancillary litigation by establishing a uniform national standard for preservation obligations and a safe harbor for parties that take reasonable steps in good faith to preserve electronically stored information (ESI).This article provides an overview of these and other key Amendments along with examples of analytical methodologies to help courts and lawyers apply the Amendments as envisioned and, where appropriate, providing context and support from existing cases and commentary.I. IntroductionThe Amendments embrace a number of measures stemming from the Conference of May 2010, which was convened by the Advisory Committee on Civil Rules (Rules Committee) to address persistent complaints about the costs of discovery (especially e-discovery), preservation of ESI and standards for sanctions for the destruction of such material.2 After the Conference, the two subcommittees assigned to respond (the Duke Subcommittee, for all rules other than Rule 37(e), and the Discovery Subcommittee for issues relating to spoliation) considered a number of potential rules and amendments through a transparent process in which public participation was deep and effective.This process included two miniconferences held before the Rules Committee released initial proposals in August, 2013, followed by three public hearings involving 120 testifying witnesses and over 2,300 written comments. After careful consideration of competing arguments and, in some cases, substantial revisions, the Rules Committee, the Judicial Conference and the Supreme Court unanimously approved the final package of amendments. Many of the surviving proposals can be traced to discussions at the Conference and the proposals and submissions relating to it, such as the LCJ White Paper.* * 3The Amendments can have a dramatic impact if judges and lawyers implement them in the manner intended by the Rules Committee. They reflect the realities of current discovery and address many of the core issues not adequately treated in the 2006 Amendments.4 * More data exists now than any time in our history, a problem that a revised Rule 26(b) addresses by embedding proportionality principles in both the scope of discovery and in cost allocation. Moreover, the replacement for Rule 37(e) provides a uniform culpability standard, which rejects the focus on the loss of a few emails to justify sanctions (e.g. Pension Committed).The amendments reflect agreement among a diverse spectrum of stakeholders that the high costs and burdens of discovery, especially e-discovery, are skewing the U.S. civil justice system. Unrestrained e-discovery is inordinately costly.6 Not only does this provide perverse incentives for requesting parties to make unlimited demands (at the cost of producing parties), but the costs routinely force unfair settlements for reasons other than a lack of merits.Large majorities of the plaintiffs' and defense bars share the view that e-discovery demands (and the threat of sanctions) are abused.7 The Committee concluded after the Conference that excessive discovery occurs in a worrisome number of cases.8 A survey of the Association of Corporate Counsel administered by the Institute for the Advancement of the American Legal System (IAALS)9 found that 80 percent of chief legal officers or general counsel disagree with the statement that outcomes are driven more by the merits of the case than by litigation costs. As the American College of Trial Lawyers (ACTL) put it in advance of the Conference, [ajlthough the civil justice system is not broken, it is in serious need of repair. …