New Changes In Federal Rules of Civil Procedure (FRCP)

Within the realm of eDiscovery, the Federal Rules of Civil Procedure (FRCP) become important to understand and follow. Numerous court judgments have been seen in recent times, where Judges have levied heavy fines and penalties upon parties who did not abide by these rules.

Several Rules have been amended as part of the changes effective today, with the changes ranging from promotion of cooperation (Rule 1) and proportionality (Rule 26(b)(1)) to failure to preserve electronically stored information (Rule 37(e)) .  Here is a list of key Rules changed:

• Rule 1. Scope and Purpose
• Rule 4. Summons
• Rule 16. Pretrial Conferences; Scheduling; Management
• Rule 26. Duty to Disclose; General Provisions Governing Discovery
• Rule 30. Depositions by Oral Examination
• Rule 31. Depositions by Written Questions
• Rule 33. Interrogatories to Parties
• Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
• Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

Noteworthy changes are in Rule 26:

Rule 26. Duty to Disclose; General Provisions Governing Discovery

(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Information within this scope of discovery need not be admissible in evidence to be discoverable.

(2) Limitations on Frequency and Extent.

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

(c) Protective Orders. (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending. Federal Rules of Civil Procedure (FRCP)

or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(d) Timing and Sequence of Discovery.

(2) Early Rule 34 Requests.

(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: (i) to that party by any other party, and (ii) by that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

(3) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and

witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery.

(f) Conference of the Parties; Planning for Discovery.

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502.