Significant Efforts To Implement Proportionality in Discovery Continue

When significant amendments to the Federal Rules of Civil Procedure went into effect last December, we celebrated this important achievement but also stressed that how the rules were implemented would be key to seeing a positive impact. The importance of how the amendments are being implemented has not been lost on the bench and bar. In fact, it has been the focus of 2016.

While the rule amendments highlight the importance of cooperation and early, active case management, the focus has been on the addition of proportionality to the scope of discovery and spoliation under new Rule 37(e). Important case law has been developed in both areas. There are a number of wonderful resources available that summarize this case law, as well as resources that focus on continuous improvement of the discovery process:

• Kroll Ontrack has published a summary of the case law, 6 Months of Case Law Under the New FRCP, which provides an analysis of the “most significant ediscovery judicial opinions in the last six months.”
• Gibson, Dunn & Crutcher has released a 2016 Mid-Year E-Discovery Update, which highlights the trends with regard to sanctions under Rule 37(e) and proportionality under amended Rule 26(b)(1).
• The Duke Law Center for Judicial Studies published Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality last December. Duke has been updating those Guidelines and Practices with an Annotated Version on a monthly basis. Duke released a revised version of the Guidelines and Practices for public comment this summer, which takes into account recent case law and insights from the roadshows that Duke co-hosted with the ABA Section of Litigation over the past year. An updated version will be posted to the website and published in the November Judicature issue. 
• The Sedona Conference® has also issued a number of important publications, including The Sedona Conference Commentary on Defense of Process, The Sedona Conference Commentary on Rule 34 and Rule 45 “Possession, Custody, or Control,” the TAR Case Law Primer, and The Sedona Conference “Jumpstart Outline.”
• Last but not least, Thomas Y. Allman—an e-discovery expert, close follower of the rulemaking process, and prolific author—has several useful articles that provide insights into implementation of the amended rules, including amended Rule 26(b)(1) and new Rule 37(e) specifically: Applying the 2015 Civil Rules Amendments, Proportionality Today, and Amended Rule 37(e).

Federal courts are not the only ones focused on implementing rule changes to achieve greater proportionality in discovery. Leading states have taken up the charge of civil justice reform, and several have revised their rules to include proportionality in the scope of discovery. Arizona continues to be at the forefront, having adopted this month rule amendments that incorporate proportionality into the scope of discovery under Rule 26(b)(1)(A) and a new Rule 37(g) that addresses failure to preserve electronically stored information. Like the federal Rule 37(e), Arizona’s Rule 37(g) recognizes the importance of reasonable steps to preserve. Arizona’s Rule 37(g) also sets the standard of reasonable anticipation and includes factors a court should consider when determining if a party took reasonable steps.

These significant efforts reflect a true commitment to improving our civil justice system at the state and federal levels.