Jason Atchley : eDiscovery : Status of Proposed Discovery Amendments to the FRCP


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Webcast Updates Status of Proposed Discovery Amendments to the FRCP

Federal Rules of Civil Procedure Advisory Committee members explained the group’s recent approval of proposed amendments.

Mark Gerlach, Law Technology News

April 18, 2014    |1 Comments

Legal project management software developer Exterro Inc. held a webcast Thursday afternoon to discuss the Federal Rules of Civil Procedure Advisory Committee’s recent approval of amendments to the Federal Rules of Civil Procedure. The 15-member Advisory Committee is a subcommittee of the Judicial Conference Committee on Rules of Practice and Procedure, also known as the Standing Committee.
Scott Giordano, corporate technology counsel at Exterro, moderated the webcast that featured the chairman of the Advisory Committee, Judge David Campbell (pictured left) of the U.S. District Court for the District of Arizona, and committee member John Barkett, a partner at Shook Hardy Bacon.
The Advisory Committee unanimously green-lighted the proposed FRCP amendments during a meeting that took place on April 10 and 11 in Portland, Ore. The proposed amendments before the committee reflected opinions that were collected during a six-month comment period that ended in February. More than 2,000 written comments were submitted, and three public hearings were held in Dallas, Phoenix and Washington, D.C.
The Advisory Committee approved major changes in discovery Rule 26(b)(1), Rule 37(e), which was replaced, and Rule 84, which was eliminated.
The new Rule 37(e) (PDF), also known as the Safe Harbor Rule, focuses on the preservation, loss and in some instances intentional destruction of electronically stored information. The rule now states that there is no strict liability if a party is unable to produce ESI, and strives to create a more uniformed culpability standard. See Figure 37e.
“We don’t live in a perfect world,” said Barkett during the webcast. “ESI is going to be lost.”
One change to Rule 21(b)(1) (PDF) was to move the proportionality factor into the scope of discovery, according to the webcast. The rule is designed to help judges and lawyers decide how much discovery is required in a particular case. See Figure 21b1. Click image to enlarge.
Rule 84 (The Forms Rule) was eliminated in an effort to streamline the process of adjusting court forms. With the removal of this amendment, the Administrative Office of the Courts can make form changes as needed in an effort to smooth out the process, and ultimately allow documents to become publicly available in a more timely fashion. The previous system could take between three to five years in some instances for updated and new forms to appear on the AOC’s website.
Other amendments that were modified and approved by the Advisory Committee include FRCP Rules 1, 4, 15 and 34, as well as the abrogation of presumptive limits on interrogatories, admissions requests and depositions, as previously reported.
“Uniformity is important to ensure that similarly situated parties are treated similarly, irrespective of the circuit,” said Barkett in a follow-up interview with Law Technology News. “Litigants are entitled to a measure of certainty as to the rules that they are expected to follow and inconsistent rules do not promote justice.”

Read more: http://www.lawtechnologynews.com/id=1202651779010/Webcast-Updates-Status-of-Proposed-Discovery-Amendments-to-the-FRCP#ixzz2zXc82QBo



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