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The Imminent Revisions to the FRCP

The Imminent Revisions to the FRCP Where We Are Headed and the Implications for the Management of Electronic Records. 25 Nov 2013 7:32 AM Posted by Jon Palmer Assistant General Counsel, Microsoft Based on FY13 Data. The Problem: Over Preservation The Average Microsoft Case.

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The Imminent Revisions to the FRCP

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  1. The Imminent Revisions to the FRCP Where We Are Headed and the Implications for the Management of Electronic Records

  2. 25 Nov 2013 7:32 AM Posted by Jon Palmer Assistant General Counsel, Microsoft Based on FY13 Data The Problem: Over Preservation The Average Microsoft Case Needles in haystacks: The secret burden holding back our economy Note: On average, 2% of cases go to trial http://blogs.technet.com/b/firehose/archive/2013/11/25/needles-in-haystacks-the-secret-burden-holding-back-our-economy.aspx

  3. Judicial Conference’s Advisory Committee on Civil Rules (“Advisory Committee”) explored possibility of changes to the FRCP • Advisory Committee released proposed amendments to the FRCP • Six-month public comment period • Public hearings in Washington, D.C.; Phoenix, AZ; & Dallas, TX • Public comment period is closed • Advisory Committee votes on new language for Rule 37(e) • Standing Committee decides on need for add’l 6-mo comment period • Advisory Committee prepares final proposed amendments • Judicial Conference’s Committee on Rules of Practice and Procedure (Standing Committee) approves amendments • Judicial Conference of the U.S. approves amendments • The U.S. Supreme Court promulgates amendments • Congress has seven-month period to reject, modify or defer • Effective, unless rejected, modified or deferred by Congress May 2010 Aug 2013 6 Mo Feb 2014 Marchto May May 2014 to May 1, 2015* 7 Mo Dec 1, 2015* or after *Anticipated Dates, unless new comment period or

  4. 1 Trigger and scope of the duty to preserve • Will the proposed amendments define: • The duty of preservation • When it is triggered • Will the scope of discoverychange? • Will it become narrower? • If so, will the scope of preservationbe similarly narrowed?

  5. 1 2 Trigger and scope of the duty to preserve • Will the definition of “relevance” indiscovery be more consistent? • Will the definition of relevancealso apply to the duty to preserve? • Can a balance be struck between the arduous and less stringent interpretations on the duty to preserve ESI? Consistency in the definition of relevance

  6. 1 2 3 Trigger and scope of the duty to preserve • Will proportionality in discoverybe more widely adopted? • If so, how will it help weigh the duty to preserveagainst the nature of the legal matter? Consistency in the definition of relevance Balancing obligations to preserve and the nature of the case

  7. 1 2 3 4 Trigger and scope of the duty to preserve • Will more uniform standards be established for failure to preserve discoverable information?  • Will uniformity lessen the fear of sanctions, which often results in over-preservation as a conservative approach? Consistency in the definition of relevance Balancing obligations to preserve and the nature of the case Sanctions & curative measures for failure to preserve

  8. The Imminent Revisions to the FRCP Where We Are Headed and the Implications for the Management of Electronic Records & Q A

  9. The Imminent Revisions to the FRCP Where We Are Headed and the Implications for the Management of Electronic Records

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