E-Discovery Trends To Watch In 2017

Significant amendments to the Federal Rules of Civil Procedure late in 2015, followed by a flood of judicial opinions interpreting them, are changing the practice. In this Today’s General Counsel article, Michele C.S. Lang discusses some key trends in this rapidly evolving area of the law. The requirement for cooperation and “proportionality” will be front and center, she says. Litigants will need to take into account such things as the amount in controversy and the parties’ resources, as well as the importance of the issues at stake in the action. “Courts are now more likely to say ‘no; if they conclude a request is designed to burden a party and has relatively little value,” she writes. “Be prepared to argue specifics as to why certain ESI is critical to the case and that your requests are narrowly tailored.” Also noted: why practitioners need to be aware of what the new rule Rule 37(e) says about spoliation and, if information has been lost, be prepared to demonstrate “reasonable steps” had been taken.