To Amend or Not to Amend-That is the Question: Proposed Amendments to Federal Rule of Civil Procedure 26 (Post 3 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)(C)

Rule 26 deals with duties to disclose and general provisions governing discovery as they relate to parties in court. Rule 26(f) outlines the conference of the parties regarding responsibilities, timing, and the solidification of a discovery plan. The proposed amendment to Rule 26(f)(3)(C) requires that, beyond the original requirements of a discovery and preservation plan, parties must state their views and proposals on issues relating to the preservation of ESI.

Requiring parties to complete a preservation plan “as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b),” as required by the proposed amendments to Rule 26(f)(1), would be impracticable. Before parties can develop a preservation plan, it is necessary that they determine which custodians are relevant, which data must be preserved, and in what format. Requiring a preservation plan before that time distracts from the more relevant and pressing tasks of determining the universe of ESI that must be preserved, the software and hardware from which it has to be collected, and the form in which the company is currently storing ESI (if any).

For the above reason, the proposed amendment is unhelpful and unrealistic. If, however, the Committee adopts this amendment as proposed, an explanatory comment should be included to address this real-world issue.

In the next post of this blog series the proposed amendment to Rule 26(f)(3)(D) will be discussed.