FRCP amendments dominated 2016 federal e-discovery cases.

PositionE-DISCOVERY

According to a November Kroll report, "New Frontiers in E-Discovery," courts in 2016 sought to better educate attorneys on proportionality and on preservation processes in relation to the 2015 amendments to the Federal Rules of Civil Procedure (FRCP).

The report, summarized by LegalTechNews.com, reviewed 57 federal opinions on e-discovery in 2016 and found a 56% increase in cases addressing FRCP Rule 26, as compared to the previous year. Rule 26 concerns proportionality, the scope of discovery, and the production of discoverable items.

The report also found a 32% increase in the number of opinions that addressed Rule 37(e) on preservation and spoliation of ESI, and an 8% spike in opinions on procedural e-discovery issues, such as predictive coding.

Michele Lange of Kroll Ontrack said there were "certainly a number of cases where judges needed to educate parties on the new rules and instill the importance of the FRCP amendments."

Lange highlighted Fulton v. Livingston Financial LLC as a good example of the modified discovery landscape: "The defendant's attorney cited the pre-2015 FRCP amendments, claiming that he acted in 'good faith' because the new version of Rule 26 did not change the meaning of relevance."

The court disagreed, saying the old amendments were out of date.

According to Lange, "Parties cannot purposely ignore or recklessly fail to address the new proportionality...

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