Although the amendment is still new, early discussions of the amended rule in judicial opinions and treatises reveal the unwitting application of these different alternatives and resulting confusion about the timing of amendments under this rule.
This article explores the ambiguity introduced by the amendment to Rule 15 a 1. Part I provides a brief history of Rule 15 a and examines the procedural shortfalls that led to the amendment. Part II takes a closer look at the amendment by parsing the ambiguous timing language, analyzing its three possible interpretations, and demonstrating the reality of the confusion by examining conflicting discussions of the amended rule in judicial decisions and treatises.
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Technical Amendments to Rules in Presage Further Changes in
See all articles by Susan E. Hauser Susan E. Before resolution of the motion, the receiving party is precluded from using or disclosing the information. Note that by providing the option of presenting the documents to the court instead of simply requiring their immediate return, the legislation creates an opportunity for the receiving party to engage in significant gamesmanship—such as intentionally presenting to the court sensitive, privileged documents whose contents might prejudice the court against the producing party. Safe Harbor for Destroyed Data.
Like Federal Rule 37 e , the new California legislation contains a "safe harbor" from sanctions for information destroyed as the result of the routine, good faith operation of an electronic system. But the safe harbor under the California law is potentially broader than its federal counterpart, which only mentions "lost" data. The new California statute, by contrast, applies to "lost, damaged, altered or overwritten" data.
Unlike the federal rule, the statute also expressly provides that the safe harbor does not alter any obligation to preserve discoverable information, such as when there is a reasonable anticipation of litigation. But the Advisory Committee Notes to FRCP 37 e state that the good faith requirement prevents a party from allowing a system to destroy data subject to a preservation obligation. Importantly, the new California law provides that courts must limit the frequency or extent of discovery of ESI—even from a source that is reasonably accessible—where any of the following conditions exist: 1 it is possible to obtain the information from a more convenient, less burdensome or expensive source; 2 the discovery sought is unreasonably cumulative or duplicative; 3 the party seeking the discovery has had ample opportunity to previously obtain the information sought; or 4 the likely burden or expense outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested information in resolving the issues.
These provisions reflect the concept of proportionality, which is becoming increasingly important because of the frequently high costs of e-discovery. The legislation introduces a new section that expressly provides for the use of subpoenas to obtain ESI from non-parties. If you have any questions regarding this material, or how to address e-discovery in one of your matters, please contact any of the following attorneys:. Gareth T.
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State of California, et al., Plaintiffs, v. EV3 INC
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Form of Production. If you have any questions regarding this material, or how to address e-discovery in one of your matters, please contact any of the following attorneys: Gareth T.