It’s no secret that eDiscovery is often the longest and costliest element of a legal matter. It’s also no secret that some purposefully employ tactics intended to prolong litigation and intentionally increase spend.
To combat this issue, the Advisory Committee on Rules of Civil Procedure set out in April 2013 to amend the Federal Rules of Civil Procedure. After two years of collaboration among top legal professionals, the amended rules went into effect on December 1, 2015.
According to a recent article by George L. Kanabe and Jacob M. Heath of Orrick, Herrington & Sutcliffe, LLP, the amendments have the potential to affect the following elements of litigation:
- service of process,
- discovery (including electronically stored information),
- default judgments, and
- pleadings requirements.
One impetus for the amendments was the Committee’s desire to demonstrate that “efficient litigation is the responsibility of every party.” Consequently, significant amendments were made to Rule 4(m) and Rule 16(b). For example, Rule 4(m) now allows 90 days—reduced from 120—to serve the summons and complaint. And Rule 16(b)(2) has also been shortened from 120 days, decreeing that opposing counsel issue a scheduling order no later than 90 days after the defendant has been served with the complaint.
Another driver of these amendments was to “foster better cooperation among litigants.” To that end, “Rule 1 will now require parties to construe, administer, and employ rules in a manner ‘to secure the just, speedy, and inexpensive determination of every action and proceeding.’” Perhaps the amendment most likely to influence eDiscovery positively, this revision seeks to reach its goal by requiring all parties—no longer just the courts—to share the responsibility for “constru[ing], administer[ing], and employ[ing]” the rules to ensure that proceedings move along more quickly and amicably.
Ultimately, these amendments should encourage legal personnel to undertake all forms of discovery, including eDiscovery, in a timelier, more cost-effective manner.
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