Thursday, April 10, 2014

Join me in Orlando at OCBA's Bench Bar Conference!

Tomorrow, April 11, 2014, I will be speaking on a few panels at the Orange County Bar Association's Bench Bar Conference at the Loews Royal Pacific Hotel at Universal Studios Orlando Resort. I am particularly excited about joining the Hon. David Baker, U.S. Magistrate Judge for the Middle District of Florida, on Advanced E-Discovery. We will be reviewing some of the proposed amendments to the Federal Rules of Civil Procedure, including 37(e) and 26(b)(1). Our CLE is actually occurring the same time that the federal civil rules advisory committee is meeting in Portland. Concerns about  proportionality moving factors to Rule 26(b)(1) were raised last fall at the Duke conference-- that it will shift the burden of proving proportionality to the party seeking discovery, that it will provide a new basis for refusing to provide discovery, and that it will increase litigation costs. None of these predicted outcomes is intended and the proposed committee note has been revised to address them. The note explains that the change does not place a burden of proving proportionality on the party seeking discovery and explains how courts should apply the proportionality factors. The note also states that the change does not support boilerplate refusals to provide discovery on the ground that it is not proportional, but should instead prompt a dialogue among the parties and, if necessary, the court. The Duke subcommittee was convinced that the proportionality considerations — which already govern discovery and parties’ conduct in discovery — should not and will not increase the costs of litigation. To the contrary, they maintain more proportional discovery will decrease the cost of resolving disputes in federal court without sacrificing fairness. See OCBA seminar agenda here-- See advisory committee report here--