In parts 1 through 5 of this series, we have summarized and described the proposed amendments to the Federal Rules of Civil Procedure (FRCP) that are intended to address electronic discovery, and to promote the early and active judicial management of cases, proportionality in discovery, and cooperation. We have discussed many of the comments that have been submitted, both in support of the proposed changes, but mostly against their adoption. Some, and maybe all, of these proposed Rules are likely to be adopted, and practitioners should be thinking now about what changes the new Rules will bring about. What will you do differently? How will this change your practice — if you typically represent plaintiffs, or individuals, or whether you typically represent defendants and large organizations?

All litigants should front-load their discovery plan

Traditionally, there were good reasons not to spend considerable time early in a case thinking about and acting on discovery. For plaintiffs, it might be time wasted if an early settlement was possible. Likewise, for defendants, if an early settlement or even dismissal without the need for discovery were possible, clients don't want to spend resources identifying and collecting documents. Fear of spoliation sanctions and the time required to identify, collect and review electronic evidence has changed that paradigm, making early attention to discovery necessary. The proposed changes support early action.