After an anticipated wait for the implementation of the amended Federal Rules of Civil Procedure (FRCP), judges and litigators say not much has changed. The amended FRCP changes mainly concern discovery issues: (1) what data needs to be preserved, (2) the amount of discovery reasonably needed in a case, and (3) what happens when electronic stored information (ESI) is lost or destroyed. Although not much has changed, now courts embrace the use of party agreed computer-assisted review methods. To that end, judges advise litigators to continue to work with their clients and adversaries on ESI preservation and discovery.
Amended Federal Rules
Effective December 1, 2015, the FRCP were amended to include a section on how discovery should be proportional to the needs of the case and the benefit versus the burden of obtaining the information. Parties no longer need to identify the custodian nor how or where the data was stored.
"The biggest concern has been effective case management by judges to lower the costs of discovery, particularly ESI or other technology," says U.S. District Judge J. Michelle Childs for the District of South Carolina. "Thus, judges are encouraged to assist with proportionality discovery. Obviously, there will not be Rule 16 conferences in every case, but judges will need to identify those cases in which early intervention is necessary and in which significant technology costs will be incurred in the litigation," continues Judge Childs.
As of December 1, discovery responses must state not only any objections but also whether the objections are being asserted as grounds for withholding discovery.
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