To Amend or Not to Amend-That is the Question: Proposed Amendments to Federal Rule of Civil Procedure 26 (Post 4 of 5)

As new technologies emerge and difficulties in the discovery process of electronically stored information rise, the Federal Rules of Civil Procedure fails to provide an effective solution. This blog series discusses the proposed amendments to the rules of discovery and analyzes whether these amendments will be effective.

Proposed Amendment to Rule 26(f)(3)(D)

The proposed amendment to Rule 26(f)(3)(D) limits the parties’ discussion about claims of privileges and protection for documents to those that would be included in a court order under Federal Rule of Evidence 502, which deals with attorney-client privilege and work product.

This limitation forecloses discussions of protection that do not fall under Federal Rule of Evidence 502—for example, protective orders for private information, such as social security numbers found on bank documents. Although there is no clear benefit to limiting the discovery plan to protection of information that falls under attorney-client privilege or work product doctrine, the cost of such an action is to foreclose necessary discussions of other valid data-protection concerns.

The proposed amendment to Rule 26(f)(3)(D) is also unhelpful and unrealistic. Should the Committee adopt it, an explanatory comment is needed to resolve this limitation on discovery.

In the final post in this series the proposed amendments to Rule 37(e) will be discussed and a conclusion of all proposed amendments will be presented.