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| vol 14, num 4 | October, 2017 |
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| ► IN this issue:
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| This issue of the ABI Bankruptcy Litigation Committee Newsletter spotlights “hot topics” in discovery. The newsletter features articles exploring proportionality and e-discovery and the federal mediation privilege. The follow-up call with the authors to discuss their articles in this newsletter will be held Friday, October 13th at 4:00 pm ET. Please use dial in (712) 451-0200; and PIN 114758.
We hope this issue will be helpful to your practice and you can join us for the follow up call.
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| Proportionality and E-Discovery: Managing and Navigating E-Discovery in Inherently Disproportionate Adversary Matters |
| The Federal Rules of Civil Procedure were amended in 2015 and explicitly adopted the concept of proportionality:
Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.[1]
The Advisory Committee notes to the 2015 amendments state that the intent was to restore the proportionality calculation to the Rule and that “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.”[2] It was not intended to offer a party opposing discovery a new shield, but rather to have parties consider the scope of discovery and the factors of proportionality early in the case, particularly in light of the ever-growing importance of e-discovery and growing quantity of electronically stored information (ESI).[3] |
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| Everything You Say Might Be Used Against You: The Uncertainty of the Federal Mediation Privilege |
| Statements made during mediation are privileged and confidential — right? In the context of federal bankruptcy proceedings, the answer is not so simple. Some practitioners will be surprised to learn that there is no such thing as a federal “mediation privilege.” The mediation privileges that most practitioners are familiar with are actually creatures of state law. But when it comes to bankruptcy proceedings, there are no such federal, statutory equivalents. Therefore, bankruptcy courts must turn to Rule 501 of the Federal Rules of Evidence, and the common law, for guidance.[1] |
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