FRCP Amendments Take Effect, Impacting E-Discovery Practice

On Dec. 1, 2015, the long-anticipated amendments to the Federal Rules of Civil Procedure (FRCP) came into effect, reflecting perhaps the most significant federal civil rules changes in decades. The amendments represent the second set of FRCP amendments specifically in response to the explosion of e-discovery in modern litigation, following the much-heralded first such set of amendments in 2006, which introduced us to the term “electronically stored information” (ESI). These new amendments aim to address high impact issues in e-discovery practice including the skyrocketing costs of e-discovery and the existing circuit split over the standard for sanctions for failure to preserve ESI.

Roadmap to Change

The enactment of the new FRCP amendments is the culmination of a multi-year process led by the Civil Rules Advisory Committee (Rules Committee) under the supervision of the Judicial Conference Committee on Rules of Practice and Procedure (Standing Committee). The movement for change began in earnest during Duke Law School's May 2010 conference on civil litigation in federal courts (the Duke Conference),¹ where federal judges, academics, and practitioners analyzed current e-discovery practices and proffered their visions and suggestions for reform.

Originally spurred by the increasing concern over “the costs of litigation, especially discovery and e-discovery,”² among other reasons, the Duke Conference participants reached a consensus that several overall changes to the FRCP were necessary, including in the areas of cooperation, proportionality, and case management as well as preservation and sanctions.³ In response, the Rules Committee tasked two subcommittees consisting of judges and lawyers with drafting and vetting proposals for the amendments. The Duke Subcommittee (focusing on overall changes) and the Discovery Subcommittee (focusing on sanctions and Rule 37(e)) drafted the proposed amendments and subsequent revisions, which were eventually adopted by the Rules Committee (April 11-12, 2013) and the Standing Committee (June 3, 2013).