In case you missed it…

By | 30th October 2014

In case you missed it, there has been (or there will soon be) a sea change in the rules relating to E-Discovery in the United States.

Some readers may think that what happens over there does not concern us over here. Others realise that what happens over there, often comes over here in due course and I don’t just mean the remnants of dying hurricanes like Gonzalo and the horrible weather they unleash on us after a race across the Atlantic.

For once, however, we on this side of the Atlantic may take some satisfaction from the fact that we have had the concept of proportionality in our courts for many years and it is good to see an outbreak of sanity in the US.

If you missed it, I refer you to an article in Corporate Counsel by Creighton Magid of US law firm Dorsey and Whitney entitled “New Discovery Rules to Rein in Litigation Expenses.”

The new rules seek to introduce the concept of proportionality into US litigation which is often been characterised in the past as “throw the kitchen sink at it” litigation or in the memorable phrase from some years back “Weapons of Mass Discovery”!

On September 16th this year the Judicial Conference of the United States, a body comprising some 26 federal judges who make policy for the US courts, rather like our Rules Committee, published amendments to the rules of discovery in trials in the federal courts.

Perhaps the most significant wording deals with proportionality and provides that:

“discovery is to be “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.”

As usual, there is no substitute for reading the detail but Mr Magid concludes his article with the following words:

“The proposed new rules are now before the U.S. Supreme Court, which is likely to approve them. Absent (unlikely) action by Congress to reject or modify the rules, the new rules will go into effect on December 1, 2015. Although that is a year away, the clear statements of the Judicial Conference concerning the need to reduce litigation costs and to cabin the circumstances under which the most severe sanctions may be imposed for failures to preserve (primarily electronic) data and information can be expected to begin influencing the decisions of judges and lawyers much sooner.”

As with the Woolf and Jackson reforms, there will certainly be a period of uncertainty and adjustment before the new rules are finally embedded into the minds of practitioners. It is good, however, to see the wind of change blowing east to west across the Atlantic for a change.