United States: The 2014 Proposed Amendments To The Federal Rules On E-Discovery – What Did They Get Right?

In April, the Advisory Committee on the Federal Rules of Civil Procedure revised its proposed amendments to the Rules relating to electronic discovery.  The Standing Committee approved the current draft of the amendments in late May.  The next step towards approval of the proposed amendments will be taken when the Judicial Conference meets in September.

As noted by the Advisory Committee, the primary goals of the proposed amendments were to reduce costs and delays in civil litigation by advancing cooperation among the parties, proportionality in the use of available procedures, and early and active judicial involvement.  The Advisory Committee also sought to establish greater uniformity in how federal courts respond to a loss of Electronically Stored Information ("ESI") in litigation, and to relieve the pressures that have caused litigants to over-preserve ESI and over-spend on e-discovery.

The proposed amendments seem to provide a "mixed bag" in terms of meeting the original goals of the amendments – they do offer some improvements to e-discovery procedures, but they fail to address other problems or, in some instances, create new questions and uncertainty regarding e-discovery practice.

First, let's look at what the proposed amendments will likely improve.

1.         Rule 26(b)(1) Promotes Tightening the Scope of Discovery and Places a Greater Emphasis on "Proportionality."

In its current proposed form, the amendment to Rule 26(b)(1) would eliminate the oft-cited language that discovery may include information that is "reasonably calculated to lead to the discovery of admissible evidence."  The Committee has reasoned that this language (which has existed since 1946) was never meant to define the scope of discovery, but rather, to address the problem of whether parties could seek discovery of hearsay statements, which are typically inadmissible at trial.

The Committee felt that since it now goes without saying that hearsay is discoverable (even if not admissible), the "reasonably calculated to lead to the discovery of admissible evidence" language is overused and misapplied to define the scope of discovery.  Therefore, to avoid further confusion (and in an apparent effort to reign in the scope of discovery in this era of heavy data), the new Rule eliminates that language and sets the scope of discovery as including information that is "relevant to any party's claim or defense."

The proposed Rule retains the language that "Information within the scope of discovery need not be admissible in evidence to be discoverable."

Meanwhile, the proposed amendments also place more emphasis on proportionality.  The proposed amendment to Rule 26(b)(1) now expressly states that discovery must be "proportional to the needs of the case." Just as important, the proposed amendment delineates the factors for proportionality as including:

  1. The importance of the issues at stake in the action
  2. The amount in controversy
  3. The parties' relative access to the relevant information
  4. The parties' resources
  5. The importance of the discovery in resolving the issues; and
  6. Whether the burden or expense of the proposed discovery outweighs its likely benefit.

Of course, these new Rules will likely result in disagreement and litigation over proportionality in specific cases.  But they do provide some additional clarity on the concept and its factors, and seem like a positive step in slowing, or perhaps even reversing, the trend of over-inclusive e-discovery.

2.         The Proposed Rules Would Promote Earlier Consideration of E-Discovery Issues.

In practice, e-discovery is not addressed early enough in many cases.  As a result, important decisions relating to e-discovery can be made (or missed) at critical phases of the litigation, such as at Rule 26(f) or Rule 16 conferences, when counsel (and the Court) establish the timelines and procedures that relate to e-discovery in the case.

Part of the problem is that the Rules in their current form do not stress or promote strongly enough the early discussion or resolution of e-discovery issues.  The proposed amendments to the Rules offer a few significant improvements in this regard.

First, the proposed amendment to Rule 26(d) and Rule 34 would allow for the early service of document requests.  Under this revision, parties could serve document requests 21 days after service of the complaint, although the clock for responding to these requests wouldn't start ticking until the Rule 26(f) conference, at which time the requests will be deemed officially "served".  The thought behind this change is that if parties are going to have a truly meaningful Rule 26(f) conference (when they are supposed to discuss discovery and e-discovery issues), they should have a better idea of what the scope of discovery will be.  As a result, this Rule change is designed to allow parties to have earlier, better-informed discussions about the scope of discovery in the case, any e-discovery issues, and to seek earlier judicial intervention (i.e., at the Rule 16 conference with the Court), if there are any anticipated preservation or production issues

Second, the proposed amendments promote earlier judicial intervention of e-discovery issues.  Under the proposed amendments, the Rule 16 conference has been moved up 30 days (so now the conference would be scheduled 90 days after service of the Complaint, rather than 120 days).

In addition, the new proposed Rule 16 now expressly provides that the Court's Scheduling Order may include issues relating to preservation of ESI, as well as agreements reached under FRE 502 (dealing with inadvertent productions of privileged documents).  Although Rule 502 Orders have been allowed since 2008, many judges have commented that the Rule is still widely underused.  Now that it is specifically highlighted in proposed Rule 16(b)(3), it reminds parties to address Rule 502 issues much earlier in the litigation, when developing their e-discovery plan for the case.

3.         The Proposed Rules Seek to Address the Issue of Gamesmanship with Respect to Discovery.

Finally, in order to do away with vague, general objections, the Advisory Committee has recommended revising Rule 34(b)(2)(B) to provide that any objections made in response to a document request must be stated with specificity.  Under new Rule 34(b)(2)(C), the responding party must now also state whether any responsive materials are being withheld on the basis of an objection.  This is meant to avoid the problem of evasive discovery responses, where the requesting party is uncertain about whether the producing party is withholding the production of certain documents based on its asserted objections.

Time will tell whether these amendments (if adopted) will ultimately reduce cost and delay in civil litigation, but the proposed changes do seem to take postive steps in allowing for greater proportionality and controls on e-discovery, and in promoting earlier and more active action by the parties and the Court with respect to e-discovery.

Click here for Part II... The 2014 Proposed Amendments to the Federal Rules on E-Discovery – What Didn't They Get Right?  

Originally published July 30, 2014

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.