The New Federal Rules Are Taking Effect

Amendments to several Federal Rules of Civil Procedure ("Rules"), five years in the making, go into effect December 1. This alert covers some key changes likely to have a big impact on litigation discovery in federal cases.

The Big Changes: Federal Rules of Civil Procedure 26(b)(1) and 37(e)

Two major amendments have received much attention and analysis: the changes to Rules 26(b)(1) - the Scope of Discovery, and the complete re-write of 37(e) – Failure to Preserve Electronically Stored Information ("ESI"). Both have already been cited in case law, despite the fact that they are only now going into effect.¹

26(b)(1) – Discovery Scope and Limits, Scope in General Significant language regarding proportionality was moved from 26(b)(2)(C)(iii), the section on discovery limitations, to 26(b)(1), which defines the scope of discovery: