Addition of Early Document Requests: FRCP 26(d)(2)
The December amendments introduced an exception to the discovery moratorium that typically requires the parties to hold their Rule 26(f) conference before issuing discovery. New Rule 26(d)(2) provides that either party may issue early Rule 34 requests for documents 21 days after service of the summons and complaint. Although the early requests are not deemed served until the parties hold their Rule 26(f) conference, the idea is that with the requests in hand, the planning conferences will be more productive and allow the parties to negotiate with some knowledge of what discovery will be requested.
Early Rule 34 requests may also allow parties to issue more-detailed litigation holds. Often there is a fundamental disconnect between what information one party believes should be preserved and what the other can foresee as relevant. Early Rule 34 requests provide a preview that could bridge this disconnect. At minimum, they could strengthen an argument that a party should have reasonably foreseen the relevance of the requested information.
While the purpose of early Rule 34 requests make sense, overly broad requests will do little to promote productive discovery planning and may only fan the flames of discovery disputes earlier than usual. In addition, because there is no requirement to respond to, or even discuss, an early Rule 34 request until after the first Rule 26(f) conference, an early request lacks the teeth needed to make a difference.
Responses and Objections to Document Requests: Rule 34(b)(2)
Rule 34(b) details the procedures for responding to Rule 34 requests for documents, including how a party must respond to the request and how it may object. The amendments to Rule 34(b)(2) sharpen the requirements for responding and objecting in several ways. First, the amendment adds that objections must be stated “with specificity,” reflecting the language in Rule 33 for objecting to interrogatories. This change is intended to curb the use of boilerplate objections that provide no real reason for the objection.
Second, the amendment addresses the common practice of producing copies of documents instead of making documents available for inspection. A party may indicate that it will produce copies of documents, but the party must complete the production no later than the time specified in the request, or by some other reasonable time specified by the party in the response. This change is intended to abate the problem of a party indicating that documents will be produced in due course, without actually committing to a specific date. However, because the amendment allows a party to specify “another reasonable time,” the impact of the change may be blunted. The Notes are silent on what amount of time is “reasonable.” At a minimum the amendments require a party to provide a date for production of documents and indicate whether they are withholding documents based on an objection.
Finally, the rule is amended to require that if a party objects, it must also state whether the objection serves as a basis for withholding documents. This change is intended to short-circuit the practice of simultaneously objecting to a request and producing responsive documents, which leaves the requesting party wondering whether some documents have been withheld on the basis of the objection.
Failure to Preserve ESI: Rule 37(e)
Rule 37 addresses discovery failures of many sorts, and subpart (e) was added in 2006 to deal with failures to disclose ESI. The December amendments overhaul the 2006 version of Rule 37(e) to address several of its shortcomings, which included (1) failing to harmonize inconsistencies among jurisdictions when dealing with lost ESI; (2) stating only what courts could not do in the event of lost ESI without providing any guidance on what measures the court could take; and (3) being ambiguous as to when a court could impose more punitive sanctions rather than less serious curative measures for lost ESI.
New Rule 37(e) presents a more affirmative approach to address lost ESI. First, the rule addresses when the court is permitted to take action for lost ESI. If the court is permitted to take action, then the rule outlines the measures the court may take, varying according to the level of prejudice caused by the lost ESI and the culpability of the party who failed to preserve it.
To determine whether a court may take action for lost ESI, the new rule sets forth four threshold questions:
- Is the information lost electronically stored (i.e., ESI)?
- Is the ESI the type of information that should have been preserved in the anticipation or conduct of litigation?
- Was the ESI lost because a party failed to take reasonable steps to preserve it?
- Is the lost ESI information that cannot be restored or replaced though additional discovery?
If the answer to any of these questions is “no,” then a court cannot take action under Rule 37(e). If the answer to each of these questions is “yes,” then the court may take action. The analysis then proceeds to the second half of the rule, which is designed to identify what measures the court may take.
The Notes discuss several useful nuances to the threshold factors. For example, they explain that the requirement that the lost ESI be of the type that “should have been preserved” is based on the common-law duty that litigants have to preserve relevant information when litigation is reasonably foreseeable. The Notes discuss that reasonable foreseeability may depend on the extent to which a party was put on notice of litigation, and on the party’s conception of the scope of information that may be relevant to the litigation. The Notes acknowledge that a party may only have limited information regarding prospective litigation and the scope of relevant information such that “it is important not to be blinded to this reality by hindsight arising from familiarity with an action as it is actually filed.” In other words, what may seem clearly foreseeable after a case is filed and a detailed complaint is served may not have been as reasonably apparent before the case was filed, when the party first learned that it may get sued.
New Rule 37(e) does not apply to ESI that was lost despite reasonable efforts to preserve. So, whether a party took reasonable efforts will be a focus and probable source of debate. The Notes acknowledge that “perfection in preserving all relevant electronically stored information is often impossible.” Although the new rule deleted reference to the “routine, good-faith operation of an electronic information system,” the Notes point out that it could still be a relevant factor in considering whether a party failed to take reasonable steps.
The concept of “proportionality” – the showcase of the amendments to Rule 26(b) – bleeds through to Rule 37(e). The Notes explain that proportionality is another factor in evaluating whether a party failed to take reasonable steps and that courts should be sensitive to party resources. For example, the Notes discuss that a less costly approach to preservation may be reasonable if it is as effective as more costly forms. The Notes also make specific reference to social media, suggesting that counsel should be familiar with their clients’ information systems and digital data – including social media – to address proportionality and preservation.
Court Action for Lost ESI
Once the threshold issues have been cleared, Rule 37(e) guides what measures a court may take for lost ESI, an analysis that hinges upon whether the court finds intent or prejudice. This stage of the rule asks the questions:
- Is there a finding that the party who lost the ESI acted with the intent to deprive the other party of the ESI’s use in the litigation?
- If there is no finding of intent, then did the loss nevertheless prejudice the other party?
The rule allows for more punitive measures if there is a finding of intent. The intent, however, must be specific – to deprive another party of the information’s use in litigation. So, for example, if an employee intentionally deletes computer files to declutter their hard drive, while the ESI may have been intentionally lost, it was not deleted with the intent to deprive another party’s use of the information in litigation as required by the rule. This amendment also settles a circuit split over whether negligent failure to preserve ESI can give rise to an adverse inference. Negligence without an intent to deprive does not permit an adverse inference or any of the other measures provided in Rule 37(e)(2).
If intent is found, then Rule 37(e)(2) applies and the court may take the more punitive measures set forth in subparts (A) through (C). These measures range from adverse inferences to dismissing the action.
If no intent to deprive is found, the party who has lost the ESI may still be on the hook if the court finds prejudice as a result of the lost ESI. If there is prejudice, then the court may order measures no greater than necessary to cure it. Unlike (e)(2), (e)(1) does not provide any specific measures, but the Notes point out that such measures cannot have the effect of any of the measures listed in (e)(2). Measures that may be appropriate upon a finding of prejudice include forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of the ESI, or giving a jury instruction to assist in the evaluation of lost ESI.
The rule is purposefully silent on which party bears the burden of proving intent or prejudice, or a lack thereof. Judges are left with discretion to assign burden depending on which party has the most relevant information regarding the lost information and the particular situation.
Many of these amendments go beyond the gradual and incremental approach to change that we are so accustomed to. The changes to the scope of discovery in Rule 26(b) and the rules for responding to discovery requests in Rule 34 will change the way many litigators have been operating for years. The amendments also give the parties a new discovery tool in the form of early Rule 34 requests. The amendments to Rule 37 also go a long way to harmonize how courts handle lost ESI, providing litigants more predictability and direction in their ESI preservation efforts. Whether these rule changes result in speedier and more-efficient resolution of cases will largely depend on how they are implemented and how judges react to varying interpretations of the changes. What is clear, however, is that the December 2015 amendments merit attention, and won’t be content sitting quietly on a shelf.