eDiscovery Daily Blog

eDiscovery Law: Possible Changes to the Federal Rules of Civil Procedure Affecting eDiscovery


As reported on Law Technology News recently, a subcommittee of the Judicial Conference of the United States is preparing to make recommendations about the possibility of changes to the Federal Rules of Civil Procedure that would improve eDiscovery procedures and rules in the United States, and affect how eDiscovery is conducted abroad.

eDiscovery Challenges up for Discussion

The subcommittee's upcoming meeting in Dallas, scheduled for September 9, 2011, is intended to cover the discussion points documented by the Advisory Committee on Civil Rules in April 2011.

Those discussion points for September currently include:

  • The scope of challenges presented by electronically stored information ("ESI"),
  • Limitations of current U.S. and overseas rules that affect discovery, and
  • The impact of ongoing technological advancements.

Although technology continues to progress, creating new situations and questions relevant to eDiscovery, the rules that govern discovery of electronic information and documents have not been changed since 2006. David Campbell, the committee chairman and District Court Judge for Arizona, says that although improvements to these rules are important, change won't happen overnight. Any official changes are not likely to come into effect until 2013 or 2014.

At this point, Campbell says, the September 9 meeting is intended as an opportunity "to learn from these folks… a due diligence effort on the part of our subcommittee."

Three Types of Rules Affecting eDiscovery

The subcommittee plans to discuss three types of rules:

  • Specific rules for electronically stored information,
  • More general rules related to eDiscovery, and
  • Rules that specifically cover sanctions.

If enough progress is made, the results of the September 9 conference will be presented as a summary and proposal in November. In turn, this proposal would likely be up for discussion in March of 2012, when the subcommittee's ideas will be open to public discussion. The end goal is for any changes to rules to be approved by December of 2012, although it could take as long as 2014 for any new rules to come into effect.

So, what do you think? Do you expect major changes to the rules regarding eDiscovery, and if so, what would you like to see changed, and why? Please share any comments you might have or if you'd like to know more about a particular topic.