In changes that have been five years in the making, amendments to the Federal Rules of Civil Procedure go into effect today, December 1, 2015.
Two major amendments have received much attention and analysis. The first is the addition of an express proportionality requirement to Rule 26(b)(1) regarding the Scope of Discovery, and the second is a complete re-write of Rule 37(e) regarding the Failure to Preserve Electronically Stored Information (“ESI”).
But other changes are included as well. FRCP Rule 34(b)(2), dealing with discovery responses and objections, now requires that the grounds for any objections be stated “with specificity” and a statement about “whether any responsive materials are being withheld on the basis of that objection.” And Rule 16(b) regarding scheduling orders now includes a reference to Federal Rule of Evidence 502(d), which provides that inadvertent disclosure does not result in waiver of the attorney-client privilege when the holder of the privilege “took reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error.” This amendment is a nod to the realities of large-scale e-discovery, and requires federal courts and parties to think about what should happen in the event of an inadvertent disclosure.
With changes ranging from the relatively minor to the potential game-changers discussed above, the amended Federal Rules will alter discovery as we know it.