In this video, E-Discovery Advocacy and Management team leader Karin S. Jenson answers questions raised by clients and colleagues about the December 1 expected changes to the discovery rules of the Federal Rules of Civil Procedure, their potential practical impact, and how to prepare, including:
What are the rules changes, and when do they take effect? How will these rules changes impact discovery? What can clients do to prepare for the changes?
Click here to view the video.
Why are the rules changing? These changes are in response to increasing costs and delays in federal litigation and are intended to compel clients and litigants to focus on the scope of discovery. Taken together, they require thorough early case assessment and early and frequent discussions with the adversary. Clients who are accustomed to higher fees when a case is in the throes of discovery might now see a bigger blip at the beginning, but the rules, when properly applied, could actually result in a lower discovery spend as the parties work things out instead of engaging in motion practice. The goals of the amendments are to improve case management, to refine the concept of proportionality, to encourage party cooperation, and to provide uniform preservation and spoliation rules across the country. Currently, the case law is quite varied by circuit, and even internally within a circuit.
What are some issues/challenges clients will face when the new rules take effect? Both clients and counsel should prepared to identify which sources of information and witnesses really matter to resolving disputes. We will need to work together to ensure that we are having the right conversations with each other and with our adversaries. Potential issues could arise as clients, counsel, and judges adapt to the new rules. There is ample opportunity for dispute.
What can litigators do to prepare for the changes? Besides traditional commercial litigators, others who need to prepare include employment attorneys, patent prosecution attorneys, and bankruptcy attorneys, as the rules changes will affect all of those practices. Attorneys should study not just the additions and deletions to the rules, but also the committee notes, which give context to the changes. You can find the committee notes here. BakerHostetler has developed a comprehensive training program for all attorneys who practice in the federal courts, packaged by subject matter, such as how the changes collectively affect the preservation of evidence and the meet and confer process (the photo below is from the training for litigation and employment attorneys in Columbus recent). We’ve found this approach gets people thinking about what they need to do differently and what new disputes might crop up.