April 26, 2016 Articles

FRCP Amendments May Allow Parties to Limit Costs and Scope of eDiscovery

By Rebeccca Kahan Waldman and Meghan Rohling Kelly

The amount of discovery is perhaps the biggest factor affecting the cost and duration of litigation, especially for corporations and other business entities, because of the steady growth in electronically stored information (ESI). On December 1, 2015, the most significant amendments in modern history to the Federal Rules of Civil Procedure went into effect. These amendments, largely focused on discovery practices, promote early and active case management by the parties and courts, encourage early and open dialogue about the scope and timing of discovery, and endorse proportionality in discovery. Counsel who know these amendments and strategically use the principles they embody may be able to resolve cases at a faster pace and reduce the burden of ESI discovery.

Focus on Efficiency
The need for increased efficiency is a central theme of the amendments. Rule 1 emphasizes that the court and parties should take all steps necessary to “secure the just, speedy and inexpensive determination of every action and proceeding.” The amendment’s new inclusion of “the parties” in Rule 1 makes it clear that the duty to achieve an efficient resolution in litigation is shared by those who practice before the bench and those who serve on it. As the Advisory Committee notes, “just as the court should construe and administer these rules to secure the just, speedy and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way.” This focus on the responsibilities of the parties in discovery carries throughout the amendments. They are structured to encourage cooperative and proportional use of discovery and to “discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay.”

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