A Change is Brewing: E-Discovery and the Proposed Amendments to the F.R.C.P.

Over the past few years, lawyers and legal ethics scholars have increasingly focused their attention on electronically stored information (ESI) and the ethical implications of keeping and deleting such information. In 2014, sanctions imposed on attorneys and their clients for discovery misconduct were inconsistent, with standards for imposing sanctions ranging from “negligence to recklessness to willful and bad faith behavior.”

The new Rule 37(e), which governs sanctions for destruction of ESI, would allow courts to consider sanctions only when “reasonable steps” were not taken to preserve the information. There would be a case-by-case determination of what constitutes “reasonable steps.” Negligent and reckless behavior would no longer result in the harshest sanctions like adverse inference instructions, which would be reserved for spoliation that occurred with “intent to deprive another party of the information’s use in the litigation.” The new rule also clarifies that the duty to preserve arises when litigation is reasonably anticipated.

Lawyers and their clients increasingly use technology like advanced data-storing and deletion systems as well as predictive coding to electronically flag discoverable materials. With these changes in the practice of law come changes in the way courts handle evidentiary and discovery issues. It is imperative that attorneys and their clients pay close attention to the law and new technologies in order to avoid sanctions for a preventable oversight. Comment 8 to Model Rule of Professional Conduct 1.1 states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Attorneys should become familiar with the new rules, which could go into effect as early as December 2015.

For more information on this topic, click here.

To read the September 2014 Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure, which includes more information about the proposed amendments to the Federal Rules of Civil Procedure, click here.

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