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Proposed Federal E-Discovery Rule Changes
Provisors OC LLP
SingerLewak LLP Mar. 5, 2015 
Sherry Katz, esq 
Eric robi, cce 
 
                    






Rule Changes Overview 
 







Overview 
Proposed changes to Federal Rules of Civil Procedure relating to E-Discovery 
Interplay with Ethics Rules 
 
 
 
 
 
 







Federal E-Discovery Rule Changes 
This September the Judicial Conference approved changes to the ediscovery rules. 
Rules 1, 4, 16, 26, 30, 31, 33, 34, and 37 are being changed. Effective December 2015. 
Overarching goal of improving the disposition of civil cases by reducing the costs and delays in civil litigation, increasing realistic access to the courts, and furthering the goals of Rule 1 “to secure the just, speedy, and inexpensive determination of every action and proceeding.”     
 
 
 
                    






Rule 1 
 







Rule 1 
Rule 1:   Rule 1. Scope and Purpose:  These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They 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.  (changes underlined) 
 
 







Cooperation 
Commentary makes clear that the purpose of this is to emphasize cooperation. 
Note that the duty of zealous advocacy was removed from the federal model ethics rules in 2011.   
Language in rule is to make clear that the parties and lawyers as well as the courts are responsible for the administration of justice. 
 
 
 
                    






Rule 4 
 







Rule 4 
1. Rule 4(m) – Service of Summons and Complaint  
Rule 4(m) would be revised to shorten the time to serve the summons and complaint from 120 days to 60 days. The result of this amendment will be the commencement of civil actions in half-the-time. This proposal stems from the perception that the early stages of litigation often take too long. Like the present rule, the court may continue to extend the time if the plaintiff shows good cause for the failure to serve within the specified time frame.  
 
 
                    






Rule 16 
 







Rule 16 
1     Rule 16. Pretrial Conferences; Scheduling; . . . The scheduling order may:  . . .     (iii) provide for disclosure, or discovery, or preservation of electronically stored information; (iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including  agreements reached under Federal Rule of Evidence502; (v) direct that before moving for an order relating to discovery, the movant must request a conference with the court; 
 
 







Committee Comment on Rule 16(b)(3) 
Rule 16(b)(3) adds to the potential list of items included in a scheduling order that directs a party to request a conference with the court before moving for an order relating to discovery—consistent with the belief that addressing discovery disputes at their incipiency will reduce costs to all parties. 
 
 
 
 
                    






Rule 26 
 







Language Removed from Rule 26(b)(1) 
 including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence 
 
 
 
 







Rule 26(b)(1) 
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the amount in controversy, the importance of the issues at stake in the   action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 
 
 
 
 







Rule 26(b)(2)(C) 
 When Required. On motion or on its own, the court must limit the  frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: . . .   (iii) the burden or expense of the proposed discovery is outside the scope permitted by Rule 26(b)(1) outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. 
 
 
 
 







Rule 26(c) 
The court may, for good  cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . . (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; 
 
 
 
 







Rule 26(f) Discovery Conference 
  (3) Discovery Plan. A discovery plan must   state the parties’ views and proposals on: 
. . .  (C) any issues about disclosure, or discovery, or preservation of electronically stored information, including the form or forms in which it should be produced; (D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502; 
 
 
 
 
 
 
 







Committee Comment on Rule 26(f) 
Rule 26(f)(3) is amended in parallel with Rule 16(b)(3) to add two items to the discovery plan —issues about preserving electronically stored information and court orders on agreements to protect against waiver of privilege or work-product protection under Evidence Rule 502. Parallel amendments of Rule 37(e) recognize that a duty to preserve discoverable information may arise before an action is filed, and may be shaped by prefiling requests to preserve and responses to them. 
 
 
 
 
 
 
 
                    






Rule 34(b)(2) 
 







Rule 34(b)(2) Responses 
For each item or category, the response must either state that inspection and related activities will be permitted as   requested or state an objection to the request the grounds for objecting to the request with specificity, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection stated in the request or a later reasonable time stated in the response. 
 
 







Rule 34(b)(2) Objections 
(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest. 
 
 
                    






Rule 37 
 







Rule 37(e) 
(e) Failure to Preserve Discoverable Information. 
Curative measures; sanctions. If a party failed to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation, the court may: 
permit additional discovery, order curative measures, or order the party to pay the reasonable expenses, including attorney’s fees, caused by the failure; and 
 
 







Rule 37(e)(1)(B) 
B) impose any sanction listed in Rule 37(b)(2)(A) or give an adverse-inference jury instruction, but only if the court finds that the party’s actions: 
caused substantial prejudice in the litigation and were willful or in bad faith; or (ii) irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation. 
 
 







Factors to determine bad faith 
The court should consider all relevant factors in determining whether a party failed to preserve discoverable   information that should have been preserved    in the anticipation or conduct of litigation,  and whether the failure was willful or in bad faith. The factors include: 
 
 (A) the extent to which the party was on notice that litigation was likely and that the information would be discoverable; 
 
 







Factors to determine bad faith 
B) the reasonableness of the party’s efforts to preserve the information;  
 
(C) whether the party received a request to preserve information, whether the request was clear and reasonable,  and whether the person who made it and the party consulted in good faith about the scope of preservation; 
 
 
 







Factors to determine bad faith 
(D) the proportionality of the preservation efforts to any anticipated or ongoing litigation; and whether the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information. 
 
 
 
 
                    






Interplay with Ethics Rules 
 







Interplay with Ethics Rules 
Proposed Formal Opinion Interim No. 11-00004, 2014 
Almost every litigation matter potentially involves Ediscovery. 
Little California law – look to federal law for guidance. 
 
 
 
 







Federal Model Rule 1.1 
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” 
- California Rule 3-110 also addresses competence. 
 
 







New Comment to Rule 1.1 
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
 
Comment 8 to Rule 1.1 added March 2013 
 
 
 







Relevance to Ediscovery 
At a conference in April 2014, Judge Scheindlin clearly stated that the changes to Rule 1 of the FRCP were intended to be read in conjunction with Rule 1 of the Model Rules.  Competence in Ediscovery is necessary for the efficient administration of justice. 
 
 







Duties According to Interim Opinion 
1. Initially assess e-discovery needs and issues, if any; 
2. implement appropriate ESI preservation procedures, including the obligation to advise a client of the legal requirement to take actions to preserve evidence, like electronic information, potentially relevant to the issues raised in the litigation 
3. analyze and understand a client’s ESI systems and storage; 
4. identify custodians of relevant ESI; 
5. perform appropriate searches; 
 
 







Duties According to Interim Opinion 
6. collect responsive ESI in a manner that preserves the integrity of that ESI; 
7 . advise the client as to available options for collection and preservation of ESI; 
8.engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan; and 
9. produce responsive ESI in a recognized and appropriate manner. 
See, e.g., Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. 2010) 685 F.Supp.2d 456, 462-465. 
3-100, 3-110, 3-210, 5-200, and 5-220 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code section 6068. 
 
 







Duties According to Interim Opinion 
See, e.g., Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. 2010) 685 F.Supp.2d 456, 462-465. 
3-100, 3-110, 3-210, 5-200, and 5-220 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code section 6068. 
 
 







Relevant Sections of Ethics Rules 
3-100 – Confidential Information 
3-110  - Competence 
3-210 – Not advising violation of the law 
5-200 – Trial Conduct 
5-220 – Duty Not to Suppress Evidence 
 
 







We’re Done! 
      
Eric Robi, President 
Elluma Discovery  
310-616-0204 
eric@elluma.com 
      
Sherry Katz, Vice President 
Elluma Discovery  
310-616-0207 
sherry@elluma.com 
 


