Jonathan C. Puth submits comments to the United States District Court for the District of Maryland, which is currently reviewing new proposals entitled “Principles for the Discovery of Electronically Stored Information in Civil Cases.” The discovery of Electronically Stored Information (ESI) can be critical to the development of Correia & Puth clients’ cases.
Some of the proposed changes appear harmful to employees in many cases and seem at odds with the new proportionality considerations in the Federal Rules of Civil Procedure (FRCP) changes implemented in December 2015.
These Proposed Rules appear to take what were relatively modest changes to the FRCP and go to much greater lengths in ways that may be harmful to employees seeking to vindicate their rights in court. For instance:
In reciting proportionality principles the FRCP places first “the importance of the issues at stake in the action,” while the Local Rules place that factor last, after burden and expense and amount in controversy. The importance of cases under fee-shifting statutes are great, often times in comparison to their monetary amounts at stake due to society’s interest in enforcement of our civil rights and wage statutes.
Principle 2.04(e) presumes there will be cost-shifting, whereas the 2015 amendments to the FCRP had rejected explicit cost-shifting, noting that authority for cost-shifting already exists in the rules.
The Principles encourage parties to appoint an ESI liaison, and contemplate sanctions for failure to do so, which may hurt individual clients and attorneys in small practices.
The Principles overemphasize the issue of proportionality, repeating the concept when in fact the FRCP’s approach to proportionality represented only a modest change in the rules.
Read Mr. Puth’s full comments to the Maryland Local Rules and Forms Committee here.