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FRCP amendments dominated 2016 federal e-discovery cases.

According to a November Kroll report, "New Frontiers in E-Discovery," courts in 2016 sought to better educate attorneys on proportionality and on preservation processes in relation to the 2015 amendments to the Federal Rules of Civil Procedure (FRCP).

The report, summarized by, reviewed 57 federal opinions on e-discovery in 2016 and found a 56% increase in cases addressing FRCP Rule 26, as compared to the previous year. Rule 26 concerns proportionality, the scope of discovery, and the production of discoverable items.

The report also found a 32% increase in the number of opinions that addressed Rule 37(e) on preservation and spoliation of ESI, and an 8% spike in opinions on procedural e-discovery issues, such as predictive coding.

Michele Lange of Kroll Ontrack said there were "certainly a number of cases where judges needed to educate parties on the new rules and instill the importance of the FRCP amendments."

Lange highlighted Fulton v. Livingston Financial LLC as a good example of the modified discovery landscape: "The defendant's attorney cited the pre-2015 FRCP amendments, claiming that he acted in 'good faith' because the new version of Rule 26 did not change the meaning of relevance."

The court disagreed, saying the old amendments were out of date.

According to Lange, "Parties cannot purposely ignore or recklessly fail to address the new proportionality requirements of Rule 26(b)(1). Fulton proves that courts simply will no longer tolerate such outdated and out-of-touch legal advocacy."

Courts have also sought to finesse how Rule 37(e), concerning the preservation of ESI, is applied in discovery. Lange said this has always been a tricky area for e-discovery law, given that "what is considered 'proper preservation' is a blurry line, often dependent upon a myriad of case-specific facts, which makes it ripe for courts to intervene and clarify when disputes arise."

Lange expects this fine-tuning to continue in 2017.

While courts are offering instruction on preserving ESI, they are not mandating that parties employ predictive coding, based on what Lange refers to as "two key opinions." In those actions, Hyles v. New York City and In re Viagra (Sildenafil Citrate) Products Liability Litigation, the courts did not compel a party to use the new technology. Said Lange: "Instead, it was reiterated that a responding party is best situated to decide how to search for and produce ESI responsive to a document request."

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Title Annotation:E-DISCOVERY
Publication:Information Management Journal
Geographic Code:1USA
Date:Mar 1, 2017
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