+Mary Mack

FRCP: Notes on changes to the Proposed Amendments

Tomorrow morning (to me) and afternoon to the east coast, I will be talking with Tom Allman about the changes to the Proposed eDiscovery Amendments.  The Agenda Book is 580 pages.  Of single spaced courier font type.  Tom’s distilled it down to about 40, and our slide deck is under 20.

After the webcast, I will post here with some additional links, including to Tom’s paper.  He spent the better part of last weekend revising it due to the total rewrite of what many consider the lynchpin of the new amendments, Rule 37(e).

I’ve made myself a few notes outside of the 37(e) sanctions/curative measures discussion where we will spend most of our time.


1.  Proportionality moves to 26(b)(1) from 26(b)(2)(C)(iii)
the parties’ relative access to relevant information added as a factor

cost moved to number 2, after importance of the issues

2.   26(c)(2) includes “the allocation of expenses” in a protective order for production

Discovery Plans:

On the one hand, the changes remind about the “get out of jail free” card for inadvertent production afforded by FRE 502 protection, and on the other hand, explicitly call out preservation as an item to be included in the scheduling order.

3.    26(f)(3)(C) includes any issues about disclosure, or discovery, or preservation of electronically stored information,
including the form or forms in which it should be produced;

4.     26(f)(3)(D) whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502

Time Limits:

5.   All new limits are out, except for the soul crushing 7 hour deposition reduction to 6 hours.

Committee Notes Changes:(underline is new language, bold is mine):
A portion of present Rule 26(b)(1) is omitted from the proposed revision. After allowing discovery of any matter relevant to any party’s claim or defense, the present rule adds: “including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” Discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples. The discovery identified in these examples should still be permitted under the revised rule when relevant and proportional to the needs of the case. Framing intelligent requests for electronically stored information, for example, may require detailed information about another party’s information systems and other information resources.
The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that “Information within this scope of discovery need not be admissible in evidence to be discoverable.”
Re: Protective orders allowing allocation of costs:
Recognizing the authority does not imply that cost-shifting should become a common practice. Courts and parties should continue to assume that a responding party ordinarily bears the costs of responding.
+Mary Mack

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