Page 7 - E-Discovery

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E-Discovery | MONDAY, OCTOBER 6, 2014 | S7

We’re in the business of HELPING YOU the importance of the issues at stake in the information’s use,” the court may presume the
action, the parties’ resources, the importance lost information was unhelpful to the party,
of the discovery in resolving the issues, and instruct the jury that the lost information was
build a BETTER case.
whether the burden or expense of the pro- unhelpful or dismiss the action.14 The new
posed discovery outweighs its likely beneit. standard set forth in the proposed amend-
Information within this scope of discovery ments appears to eliminate the threat that a
Our dedicated litigation and valuation practice need not be admissible in evidence to be dis- party could lose their case, regardless of the
coverable.”10 The proposed change appears to merits, for a negligent loss of electronically
provides exceptional client service on forensic
provide court with discretion to tailor discov- stored information and should go a long way
accounting, fraud accounting, business valuation, ery to the needs of a particular case, but may toward allowing parties to make more cost
also have the effect of generating discovery effective decisions regarding preservation.
and state and federal criminal matters.
disputes over whether particular discovery
requests meet the proportionality standard Practical Impact
As one of the largest and most experienced forensic or are over-broad.
If they are accepted by the Supreme Court,
accounting and valuation practices in the New York Preservation and Sanctions
and not amended by Congress, the proposed
amendments should give judges and litigants
metropolitan area, we invite you to get to know us.
In order to address the differing standards the tools to streamline pretrial litigation and
among the federal courts for imposing sanc- discovery. The Advisory Committee’s pro-
tions on parties who fail to preserve electroni- posed rule changes take a less extreme posi-
cally stored information resulting in excessive tion with regard to limiting discovery than the
over-preservation of electronically stored version that was proposed for public com-

information, the proposed amendments ment. If courts begin to apply the principle
completely re-wrote the current version of
of proportionality to discovery in a practical
way, then the limitations on discovery tools
contained in the original proposal should be
unnecessary. Considerations of proportional-
The proposed rules amend- ity may cause parties to be more conserva-
tive in their approach to discovery requests
ments ofered by the Advisory and deposition demands. The requirement
Committee withdrew certain for speciicity in discovery objections should
go a long way toward limiting the boilerplate
© 2014 Baker Tilly Virchow Krause, LLP
Connect with us: bakertilly.com
proposed changes to limit the discovery responses and objections many
Baker Tilly refers to Baker Tilly Virchow Krause, LLP,
631 719 3226
judges and litigants complaint about. Many
an independently owned and managed member of Baker Tilly International.
discovery tools parties may corporations will take comfort in the change
use in litigation while keep- to Rule 37 making the ever present possibility

ing others designed to make of sanctions for spoliation of electronically
discovery more focused and stored information considerably less likely.
The question is whether judges and lawyers
eicient.
will embrace these changes and use the tools
the proposed amendments purport to pro-
vide to them.
Rule 37(e). The original proposed amendment
generated considerable public comment and Next Steps
the Advisory Committee listened and re-wrote
the revised version of Rule 37(e). Under the Under the current schedule, the Judicial
original proposed amendments, sanctions Conference is scheduled to meet in Sep-
could only be imposed where the loss of any tember, where it could recommend further
discoverable information by a party that was changes to the proposed amendments to the
under a duty to preserve “caused substantial U.S. Supreme Court. Under the Rules Enabling

prejudice in the litigation” and the loss of Act of 1934, the U.S. Supreme Court has the
information was “willful or in bad faith” or it authority to enact and modify the Federal
irreparably deprived a party any meaning- Rules of Civil Procedure and would have to
ful opportunity to present or defend against act on any revised rules on or before May 1,
the claims in the litigation.”11 If the standard 2015. Without legislation enacted by Congress Network with Develop new business Get to know General Access vital business
for sanctions was not met, the court could rejecting, modifying or deferring the proposed inluencers eficiently, using active records of Counsel before you development
impose “curative measures” to address the amendments, the amendments would take utilizing contact each corporation’s top- even meet them
information from a
loss of discoverable information. The pro- effect on Dec. 1, 2015.
information for General Counsel, as choice, go-to law irms for outside counsel
with biographical information such as single, searchable, easy-to-use tool
posed amendment to Rule 37(e) generated a •••well as department- industry expertise,
considerable amount of negative public com- ••••••••••••••••••••••••••
head contacts
education, law irm
ment and particularly about the “willful or in 1. A complete set of the proposed amendments can be experience and more
bad faith” standard for sanctions.12 In the inal found at www.uscourts.gov/uscourts/RulesAndPolicies/
version of the proposed rules, the Advisory rules/civil_rules_redline.pdf.
2. Rule 4(m).
Committee eliminated the “willful or bad faith” 3. Rule 16(b)(2).
4. Rile 16(b)(1).
standard and limited Rule 37(e)’s application 5. Rule 16(b)(3)(B)(v).
6. Rule 16(b)(3)(B)(iv). The proposed amendment to
Start Connecting
to electronically stored information and not Rule 26(f)(3)(D) requires that the discovery plan must
all discovery as the prior proposal had. The state the parties’ views and proposals on claims of privi- Attend a demo or learn more at
new proposed amendment provides that if lege.
almlegalintel.com/ALI/InHouseDirectory
electronically stored information that should 7. Rule 26(d)(2).
8. Rule 34(b)(2)(B) & (C).
have been preserved is lost and cannot be 9. Rule 26(b)(1).
restored or replaced through additional dis- 10. Rule 26(b)(1)
covery, the court, upon a inding of prejudice, 11. Rule 37(e).
may order measures “no greater than nec- 12. May 2014 Advisory Committee Report to the
Standing Committee, available at www.uscourts.gov/us-
essary to cure the prejudice.”13 However, if courts/RulesAndPolicies/rules/Agenda Books/Standing/
there is a inding that the party acted with ST2014-05.pdf.
an ”intent to deprive the other party of the
13. Rule 37(e).
14. Id.