Pending Changes To Federal Rules Will Change E-Discovery

Changes to the Federal Rules of Civil Procedure scheduled to come into effect in December will increase the courts’ focus on making discovery proportional to the needs of the case. Adjusting to these changes will require legal practitioners to deepen their understanding of electronically stored information sources in client environments and the e-discovery tools that lawyers use. Complying with the new rules will help attorneys give clients fast, definitive answers about the risks and expenses they face.

New Rule 26(b)(1), in requiring discovery to be proportional to the needs of the case, makes explicit reference to, among other things, the parties’ resources, the importance of the discovery in resolving the issues and whether the expense outweighs the likely benefit.

Changes to Rule 16 will encourage judges to manage cases early and actively. Such management will include an initial pre-discovery conference where the judge confers with the parties, preferably in person, about timing and the needs of the case.

When the new rules come into play, parties will need fast, in-depth knowledge of their ESI and its contents. This will place them in a position to argue that the other side’s discovery requests are overly broad, onerous or disproportionate.

The new rules will require litigants and legal services providers to rethink the way they handle discovery on a broad scale. This is an opportunity for law firms and litigation support vendors to deliver value to their clients.