THE 2015 FEDERAL E-DISCOVERY RULES AMENDMENTS

Transcription

1 THE 2015 FEDERAL E-DISCOVERY RULES AMENDMENTS 1

2 Today s Panel Gary R. Jones, U.S. Magistrate Judge Ralph Artigliere, Florida Circuit Court Judge (Retired) William F. Hamilton, UF Law E-Discovery Project 2

3 Why Now? Duke Conference in 2010 First Draft in witnesses 2300 written submissions Approved by Supreme Court Submitted to Congress Effective December 1,

4 The Big Four Principal Changes Rule 1 & 16: Cooperation and Disclosures Rule 26(b): Scope of Discovery Rule 26(c)(1)(B): Allocation of Expenses Rule 26(d)(2): Early Requests for Production Rule 26(f)(3): E-Discovery Topics Rule 34 (b)(2) :Responses and Objections Rule 37(e): Sanctions 4

5 Amendments to Rule 1 [These rules] should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. 5

6 Committee Note to Rule 1 Effective advocacy is consistent with and indeed depends upon cooperative and proportional use of procedure. [Amendment] does not create a new or independent source of sanctions. 6

7 Rule 16 Emphasizes the importance of direct simultaneous communication Accelerates the time for issuing the Scheduling Order by 30 days. Includes the following as permitted content: Preservation FRE 502 Requiring pre-motion conferences 7

8 Rule 26(b)(1)--Proportionality Parties may obtain discovery regarding any non-privileged matter that is relevant to any party s claim or defense and proportional to the needs of the case.. 8

9 Rule 26: Proportionality Factors, considering the importance of the issues at stake in the action, the amount in controversy, the parties resources, the parties relative access to relevant information, the importance of the discovery in resolving the issues, and whether the burden and expense of the proposed discovery outweighs its likely benefit. 9

10 Rule 34 Response and Objections For each item or category, the response must state with specificity the grounds for objecting. An objection must state whether any responsive materials are being withheld on the basis of that objection. 10

11 What is removed from Rule 26? For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. 11

12 What is removed from Rule 26(b)(1)? Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. 12

13 Committee Note on reasonably calculated The phrase reasonably calculated has continued to define the scope of discovery which might swallow any other [discovery] limitation. The [phrase] has continued to create problems. It is replaced by the direct statement that Information within the scope of discovery need not be admissible in evidence to be discoverable. 13

14 What is removed from Rule 26? including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and locations of persons who know of discoverable matter. 14

15 Committee Note on information systems Discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text with these examples. The discovery in these examples should still be permitted. Framing intelligent requests for ESI, for example, may require detailed information about another party s information systems and other information sources. 15

16 Rule 26(c)(10(B) cost shifting [The court may specify] terms, including time and place or the allocation of expenses, for the disclosure or discovery. 16

17 Rule 26(d) Early Rule 34 Requests More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered. The request is considered to have been served at the first Rule 26(f) conference. 17

18 Rule 26(f): topics of conference Preservation FRE

19 Rule 37(e) Completely re-written Only addresses preservation failures Creates a two-tier sanctions framework. 19

20 Rule 37(e)(1) The two tiers of curative measures Both tiers require findings that: ESI should have been preserved A party failed to take reasonable steps Cannot be replaced through additional discovery 20

21 Rule 37(e)(1) Upon finding of prejudice to another party from the loss of the information, [the court] may order measures no greater than necessary to cure the prejudice 21

22 Rule 37(e)(2) Sanctions Only on a finding that the party acted with the intent to deprive another party of the information's use in the litigation may (A) presume that the lost information was unfavorable to the party 22

23 Rule 37(e)(2) Sanctions (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment 23

24 Conclusion Increased reliance on specificity and facts in both claiming and asserting proportionality and objections to discovery Sanctions remain available for loss of data that are quite severe, but court s will try to effect curative remedies as much as possible 24

25 Thank you for Joining What s next: On November 2nd our Distinguished E-Discovery Speaker will be Judge James F. Francis Save the Date Our 4 th Annual Electronic Discovery Conference Takes Place on March 30, 2016 If you missed the 3 rd Annual Electronic Discovery Conference there is still time to view. Register for access at 25