The Proposed FRCP Changes: What Is “Proportionality” Anyway?

by | Nov 12, 2015

The Proposed FRCP Changes

Note: The following is a guest post from Daryn Teague, who provides support to the litigation software product line within the LexisNexis software division.

In April 2015, the Supreme Court of the United States approved significant amendments to the Federal Rules of Civil Procedure (FRCP) and submitted them to Congress for approval.

Unless Congress introduces last-minute legislation to reject, modify or defer them, these changes – most of which are related to the evidentiary rules affecting eDiscovery – will become effective December 1, 2015. These amendments will be the most sweeping reform to discovery obligations captured in the FRCP since 2006.

Much has been written about a key component in these proposed changes – “Proportionality” – and there have been conflicting accounts of how the new Proportionality standards will impact civil litigation. To try to get to the bottom of things, LexisNexis recently sponsored a webinar hosted by EDRM, a guidelines and standards organization that creates practical resources to improve eDiscovery and information governance.

The guest presenter was John M. Barkett, partner at Shook Hardy & Bacon LLP, and a member of the Advisory Committee for Civil Rules of the Federal Judicial Conference. Mr. Barkett, who is the author of two books regarding eDiscovery and teaches a class on eDiscovery at the University of Miami Law School, was deeply involved in the creation of the FRCP changes.

The provisions regarding proportionality have been a part of the federal rules a long time, Mr. Barkett noted, but the changes proposed to Rule 26 will hopefully encourage opposing counsel to be reasonable, proportional and willing to cooperate. He explained the six specific proportionality factors identified in the new FRCP Rule 26:

  1. The importance of the issues at stake
  2. The amount in controversy
  3. Access to relevant information
  4. The resources of the parties
  5. The importance of discovery in resolving the conflict
  6. The burden imposed on litigants versus the likely benefit to the resolution of the dispute

In addition, Mr. Barkett called out key changes that were made to Rule 37(e) regarding the failure to preserve electronic evidence:

  • A court can now respond when one party loses Electronically Stored Information (ESI) and consequently prejudices the other party. Under the new rule, the court can take reasonable action to cure the prejudice, even if the loss of ESI was not the opponent’s fault; and
  • With respect to the intentional loss of ESI, even when there is no prejudice to the opposing party, the court may assume the ESI was unfavorable or go as far as entering default judgment, among other remedies.

“I like to say that ‘ESI’ needs to meet the ‘JSI’ principle of American jurisprudence: Just, Speedy and Inexpensive,” said Mr. Barkett. “Our hope with these amendments to the FRCP is that we have provided judges and litigants with the guidelines necessary to make the administration of justice more efficient and less costly as relates to eDiscovery.”

Looking for more in-depth information?  Download our new white paper Proportionality and the New FRCP Rules on eDiscovery which is complimentary with registration.

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Photo credit: Flickr, CaptMikey9, Capitol Steps (CC BY 2.0)

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