Call for Comment: Proposed Revisions to Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality

EDRM

Comments Due Tuesday, Sept. 6, 2016

The Center and the ABA Section of Litigation co-hosted programs on the discovery amendments in 17 cities, beginning in November 2015, to learn from judges and practitioners how the amendments are operating.  In total, nearly 70 judges and 70 practitioners appeared on panels speaking to more than 2,500 lawyers.

The roadshows presented an unprecedented opportunity to learn first-hand from the bench and bar how the amendments are working across the country.  At the same time, a body of discovery-proportionality jurisprudence has quickly developed, which is captured in the annotated Guidelines and Practices, updated and posted monthly at https://law.duke.edu/judicialstudies/conferences/publications/.  Much of what has been learned is consistent with the recommendations in the Guidelines and Practices.

The months of experience with the amendments, and the information and insights the reporters and lawyers who drafted the Guidelines and Practices gathered from working with and talking to lawyers and judges in 17 cities across the country, have provided a basis for refinements, clarifications, and additions that are helpful, timely, and need not be delayed until our later comprehensive review a few years from now.  The proposed changes in the attached revised Guidelines and Practices account for these experiences and new case law, but do not significantly alter the substance of the document.

Many of the proposed refinements are to the organization, not the content.  Some Guidelines or Practices are moved to better reflect their relationship to the overall proportionality concept.  Several changes account for case law. The bulk of the other changes, particularly in the Practices, are examples of discovery techniques recommended by judges and practitioners at the roadshows who use and promote them.  The Guidelines and Practices were revised by the project’s reporters, Hon. Lee Rosenthal and Prof. Steven Gensler.

More significant changes will require more time and work to analyze developing case law and diverse experiences of lawyers and judges applying the amended Rules.  In addition, the Center has commissioned several studies evaluating the amendments over the next three years, which include holding three regional bench-bar conferences beginning in April 2017 in Dallas, surveying major bar organizations and judges, reviewing discovery-cost invoices submitted by outside counsel, and studying cost data from ESI vendors. All this work will inform future revisions of the Guidelines and Practices, which will continue ensuring an up-to-date useful reference source.

Please submit your comments no later than c-o-b Tuesday, September 6, 2016.

Comments should be sent to:  judicialstudies@law.duke.ed

The reporters will consider all comments and make any appropriate revisions and will forward the draft for review to a select Center editorial board consisting of Hon. Paul Grimm (D. Md.), Paul Grewal (former magistrate judge and Facebook deputy counsel), and Dena Sharp (Girard Gibbs LLP).  A copy of the final version will be posted on our website and published in the November Judicature issue.

About EDRM

The Electronic Discovery Reference Model (EDRM) creates practical resources to improve e-discovery and information governance. Since 2005, EDRM has delivered leadership, standards, best practices, tools, guides and test data sets to improve electronic discovery and information governance. Member individuals, law firms, corporations and government organizations actively contribute to the direction of EDRM.

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