On April 29, 2015, the United States Supreme Court adopted amendments to the Federal Rules of Civil Procedure (“FRCP”). Unless Congress intervenes, the amendments become effective on December 1, 2015. Amended Rules 16 and 26 include significant new provisions that encourage parties to agree on ESI and privilege issues at the outset of the case, and to have their agreements entered by the court in orders under FRE 502(d).
Amended FRCP 16(b)(3)(B) provides: “The scheduling order may: . . . (iii) provide for disclosure, discovery, or preservation of electronically stored information; (iv) include any agreement 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 Evidence 502[.]”
Amended FRCP 26(f)(C-D) provides: “(3) A discovery plan must state the parties views and proposals on . . . (C) any issues about disclosure, 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 material, 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[.]” Note: “any issues” may include not just a procedure for clawing back privileged or protected information, but also how the parties will assert privilege, such as alternatives to document-by-document privilege logs, or how the parties will log email strings.