1. Federal Rules of Civil Procedure:
Breaking Down the New Amendments
April 23, 2014
© 2014 Zapproved

2. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
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3. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Today’s Panel
Hon. Craig Shaffer
US Magistrate Judge
(D. Col.)
Ariana Tadler
Milberg LLP
Brad Harris
Zapproved /Legal Hold
Pro
David Cohen
Reed Smith LLP

4. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
 Brief overview of proposed changes, and the
changes from the April meeting
 Goals and objectives of the revisions
 Implications on litigation strategies and e-discovery
processes (especially preservation)
Today’s Agenda

5. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Background of the Proposed Rule Changes
 December 2006 Rules Amendments
 May 2010: Duke Conference E-Discovery Panel
 October 2012: Mini-Conference on Preservation
 June 2013: Approved for Public Comment
 Nov. 2013 – Feb. 2014: Public Hearings
 ** April 10-11, 2014: Approval by Advisory Committee **
 May 29-30, 2014: Consideration by Standing Committee
 December 1, 2015: Earliest implementation

6. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Key Changes Being Proposed
 Amendments intended to advance early case management
 Amendments intended to promote proportionality in
discovery
 Changes to Rule 37(e) related to curative measures and/or
sanctions for spoliation

7. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Proposed Rule Changes
Rule 1. Scope and Purpose
… [these rules] should be construed, administered, and
employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and
proceeding.

8. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Amendments Intended to Advance Early
Case Management
 Rule 4(m): Time Limit for Service – reduce from 120 days to
90 days
 Rule 16: Scheduling order to be issued:
• 90 days after service (down from 120), or 60 days after defendant
has appeared (down from 90)
• Order may provide for the preservation of ESI, and agreements
reached under FRE 502
• Before moving for an order related to discovery, the movant must
request a conference with the court
 Rule 26 (f) (3) amended in parallel to Rule 16 (b)
• A discovery plan must include discussion about “preservation” of
ESI and “whether to ask the court to include their agreement in an
order under Federal Rule of Evidence 502.

9. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Amendment Intended to Promote
Proportionality in Discovery
 Changes to Rule 34 document requests
• Requires that an objection to a request to produce must be stated
"with specificity."
• Permits a responding party to state that it will produce copies of
documents or ESI instead of permitting inspection, and may state a
reasonable time for the response.
• Permits a responding party to state that it will produce copies of
documents or ESI instead of permitting inspection, and may state a
reasonable time for the response.

10. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Amendment Intended to Promote
Proportionality in Discovery
 Rule 26 (b) (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.

11. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Existing Rule 37(e)
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
(e) FAILURE TO PROVIDE ELECTRONICALLY STORED INFORMATION.
Absent exceptional circumstances, a court may not impose sanctions
under these rules on a party for failing to provide electronically
stored information lost as a result of the routine, good-faith
operation of an electronic information system.

12. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Proposed Rule 37(e) for Public Comment
(e) Curative measures; sanctions. If a party failed to preserve discoverable
information that should have been preserved in the anticipation or conduct
of litigation, the court may:
(A) permit additional discovery, order curative measures, or order the party to pay
the reasonable expenses, including attorney’s fees, caused by the failure; and
(B) impose any sanction listed in Rule 37(b)(2)(A) or give an adverse inference jury
instruction, but only if the court finds that the party’s actions:
(i) caused substantial prejudice in the litigation and were willful or in bad faith;
or
(ii) irreparably deprived a party of any meaningful opportunity to present or
defend against the claims in the litigation.

13. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Proposed Rule 37(e) for Public Comment
(2) Factors to be considered in assessing a party’s conduct. The court
should consider all relevant factors in determining whether a party failed to
preserve discoverable information that should have been preserved in the
anticipation or conduct of litigation, and whether the failure was willful or in
bad faith. The factors include:
(A) the extent to which the party was on notice that litigation was likely and that
the information would be discoverable;
(B) the reasonableness of the party’s efforts to preserve the information;
(C) whether the party received a request to preserve information, whether the
request was clear and reasonable, and whether the person who made it and
the party consulted in good faith about the scope of preservation;
(D) the proportionality of the preservation efforts to any anticipated or ongoing
litigation; and
(E) whether the party timely sought the court’s guidance on any unresolved
disputes about preserving discoverable information.

14. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Approved Proposal for Rule 37(e)
(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If
electronically stored information that should have been preserved in the
anticipation or conduct of litigation is lost because a party failed to take
reasonable steps to preserve the information, and the information cannot
be restored or replaced through additional discovery, the court may:
(1) Upon a finding of prejudice to another party from loss of the
information, order measures no greater than necessary to cure the
prejudice;
(2) Only upon a finding that the party acted with the intent to deprive
another party of the information’s use in the litigation,
(a) presume that the lost information was unfavorable to the party;
(b) instruct the jury that it may or must presume the information was
unfavorable to the party; or
(c) dismiss the action or enter a default judgment.

15. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Sekisui American Corp. v. Hart
 Judge Shira Scheindlin, in her August 2013 opinion:
• (1) willfully and permanently destroyed the ESI of at least two key
players in this litigation;
• (2) failed to impose a litigation hold for more than a year after
the duty to preserve arose, despite the fact that Sekisui is the
Plaintiff in this action and, as such, irrefutably knew that litigation
could arise; and
• (3) failed to advise its IT vendor of such litigation hold for nearly
six months after (belatedly) imposing such hold.
 “Accordingly, the Harts’ request for an adverse inference
jury instruction is granted.”
Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (SAS) (FM), 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013)

16. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Questions
 How will the changes to Rule
37(e) impact possible sanctions
against a party who fails to
preserve ESI?
Court-imposed actions
Cost shifting
Monetary fines
Special jury
instructions
Preclusion
Case-
Ending
The court may:
(1) Upon a finding of prejudice to
another party from loss of the
information, order measures no
greater than necessary to cure
the prejudice

17. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Questions
 A Benchmark study conducted by
Legal Hold Pro reported over 50%
of custodians did not fully
understand their responsibilities
regarding a legal hold. If the
proposed rules were enacted,
would sanctions issue if
custodians failed to preserve due
to poor training?
2.9%
14.1%
37.6%
33.6%
11.8%
Don't Understand Fully Understand
Do Employees Understand
Preservation Obligation?

18. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Questions
 Overall, what impact will these rules have regarding
access to justice?

19. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
Additional Resources
Contact us directly at:
• Brad Harris, brad@zapproved.com
• Ariana Tadler, ATadler@milberg.com
• David Cohen, drcohen@reedsmith.com
• Hon. Craig Shaffer, craig_b_shaffer@cod.uscourts.gov

20. Federal Rules of Civil Procedure: Breaking Down the New Amendments -- April 23, 2014
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