After a long lead time, the new amendments to the Federal Rules of Civil Procedure took effect Dec. 1. As U.S. Supreme Court Chief Justice John Roberts succinctly stated in his 2015 year-end report on the federal judiciary, “The amendments may not look like a big deal at first glance, but they are.” Why? Discussions regarding discovery will begin much earlier in the life of a case, and there will be intense pressure upon counsel to better understand the electronically stored information (ESI) in their clients’ possession. Litigants will also find a new safe harbor for the preservation of ESI, which should provide parties who take reasonable steps to preserve their ESI with a measure of security, thereby reducing the quantity of sanctions-related litigation. An up-front investment of time and resources in an organization’s information governance structure will provide a tangible strategic and monetary advantage in navigating the new discovery regime.

Also present in the new amendments are narrower standards of relevance and proportionality, intended to constrain the scope of discovery. As amended, the rules seek to concentrate discovery on the claims and defenses and to make it more difficult to launch fishing expeditions and conduct “discovery-on-discovery.”

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