E-Discovery Update: Federal Rules of Civil Procedure Amendments Go into Effect

December 1, 2015

We have been talking about them for months, but today is the day the amendments to the Federal Rules of Civil Procedure (FRCP) go into effect. The changes should have a significant impact on the scope, speed and specificity of discovery obligations. Below is a summary of some of the changes.

FRCP Rule 26(b) has been reorganized to place new emphasis on relevance and proportionality of discovery. The new rule changes the scope standard from “any relevant subject matter involved in the action” and information “reasonably calculated to lead to the discovery of admissible evidence,” to information “relevant to any party’s claim or defense and proportional to the needs of the case.

The proportionality factors have been relocated from Rule 26(b)(2)(C)(iii) to the front of the rule at FRCP Rule 26(b)(1) and include:

  • 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.

These changes stress the parties’ obligation to consider proportionality when propounding and responding to discovery and to focus on discovery of relevant information.

Proportionality concepts in FRCP Rule 26(b) make their way into other revised rules as well. Additional depositions are permitted with leave of court in Rules 30 and 31, but the court can consider proportionality factors from 26(b). FRCP Rule 33 still limits interrogatories to 25, and additional interrogatories are permitted only to the extent consistent with the relevance and proportionality concepts in Rule 26(b)(1) and (2).

Changes to Rule 16 will reduce delays at the beginning of litigation by limiting the time to issue the scheduling order to the earlier of either 90 days (not 120 days) after service or 60 days (not 90 days) after any defendant has appeared. Also, the scheduling order may include Federal Rule of Evidence 502 agreements, which further the Courts’ encouragement of non-waiver and claw-back agreements to facilitate discovery.

Rule 34 adds a requirement that a response to a document request must state with specificity the grounds for objecting to the request, banning the previous practice of “boilerplate” objections. Rule 34(b)(2)(C) also requires that objections must state “whether responsive documents are being withheld on the basis of the objection.” While this requirement may be difficult to comply with when broad requests are propounded, and particularly requests that implicate large volumes of e-discovery, the notes to the Rule offer some relief. The notes indicate that “[a]n objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been ‘withheld.’”

Changes to Rule 37, pertaining to the preservation or loss of electronically-stored information, are also significant. First, Rule 37(e) adopts a common law principle that a duty to preserve arises when litigation is “reasonably anticipated.” Second, consequences for failing to preserve data are also better defined in the new Rules. Rule 37(e)(1) provides that the court, “upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.”

Under the new Rule, more serious sanctions for loss of ESI are only appropriate where the court finds a party intended to deprive the other party’s use of the ESI in litigation. Only upon a finding of intent can the court impose sanctions of an adverse inference jury instruction, dismissal of the action, or default judgment.

The coming months will be interesting as we watch courts apply these principles to ongoing and new litigation. Stay tuned…