On October 12, 2022, the Advisory Committee on Civil Rules approved amendments to Rules 16(b)(3) and 26(f)(3) concerning privilege logs. The amendments continue to be held by the Advisory Committee on Civil Rules for refinement and to address questions raised by the Committee on Rules of Practice and Procedure regarding the rules’ explanatory notes. The amendments are expected to be on the advisory committee’s March 28 meeting agenda.
Those amendments, found here, are intended to reduce the burden placed on parties declaring privileged and work product materials during the discovery process. The rationale for amending 16(b)(3) and 26(f)(3) rather than 26(b)(5)(a) was to avoid a one-size-fits-all approach that would lack the flexibility to address the unique circumstances of individual cases.
These two proposed amendments work in tandem by clarifying that parties must provide a plan at the onset of litigation on how they plan to meet the disclosure requirements under 26(b)(5)(a) while also granting them the flexibility to factor in the unique circumstances of a case to achieve it. The amendments further prompt the courts to address the discovery compliance issue in its scheduling and case management orders.
Here are some important resources:
Those amendments, found here, are intended to reduce the burden placed on parties declaring privileged and work product materials during the discovery process. The rationale for amending 16(b)(3) and 26(f)(3) rather than 26(b)(5)(a) was to avoid a one-size-fits-all approach that would lack the flexibility to address the unique circumstances of individual cases.
These two proposed amendments work in tandem by clarifying that parties must provide a plan at the onset of litigation on how they plan to meet the disclosure requirements under 26(b)(5)(a) while also granting them the flexibility to factor in the unique circumstances of a case to achieve it. The amendments further prompt the courts to address the discovery compliance issue in its scheduling and case management orders.
Here are some important resources:
