Federal Rule of Civil Procedure 26 governs discovery. The committee proposed several changes to Rule 26, including those discussed below.
Scope of discovery. Rule 26(b)(1) leads to wide-open discovery that is costly for both sides. Most young lawyers are quite familiar with the broad scope of discovery under the current Rule 26(b): "any nonprivileged matter that is relevant to any party's claim or defense" (emphasis added). Further, "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). This provision governing the scope of discovery has been used by countless young lawyers crafting responses, objections, and motions to compel.
The proposed Rule 26(b)(1) will narrow the scope of discovery. The parties can still obtain "discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." However, the discovery must be
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.
The proposed rule strikes the previous definition of "relevant information" and states instead, "Information within this scope of discovery need not be admissible in evidence to be discoverable." Committee Report, supra, at B-30 to -31.
Allocation of expenses. The committee recommended one minor change to Rule 26(c)(1), which allows a court to enter a protective order that allocates expenses. The committee acknowledged in the comments to the proposed rule that the present rule allows courts to allocate the costs of discovery, "and courts already exercise this authority." However, the comments to the proposed Rule 26 go on state that "[e]xplicit recognition [of the court's ability to allocate discovery expenses] will forestall the temptation some parties may feel to contest this authority." Committee Report, supra, at B-45.
Requests for production. Another change to Rule 26 allows for early requests for production under Rule 34. In most instances under the current rule, a party may not seek discovery before the Rule 26(f) conference. Fed. R. Civ. P. 26(d)(1). However, the proposed Rule 26(d)(2) will allow a party to deliver requests for production 21 days after the summons and complaint are served. The early Rule 34 requests will be considered served at the first Rule 26(f) conference. Committee Report, supra, at B-45. The change will allow parties to discuss the nature and scope of requests for production at the first Rule 26(f) conference and will make the discovery process more efficient from the very beginning.
Federal Rule of Civil Procedure 37 governs discovery sanctions. In 2006, Rule 37 was updated to address electronically stored information (ESI). See Jessica Kier, "Raising the Bar: How Will the New Federal Rules of Civil Procedure Affect Your Required Level of Competency?," 39 J. Legal Prof. 103, 104 (2014). The current Rule 37(e) states: "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."
The proposed Rule 37(e) replaces that language with potential sanctions if ESI "that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery." If a court finds that prejudice will result from the loss of the ESI, the court can order sanctions, but the sanction must be "no greater than necessary to cure the prejudice." Committee Report, supra, at B-56 to -57.
A court can only order a spoliation instruction or dismiss the action if "the party acted with the intent to deprive another party of the information's use in the litigation." As the comments note, these sanctions do not require a finding of prejudice because prejudice is inferred by the destroying party's intentional behavior. Committee Report, supra, at B-57, -67.
Speed up discovery. Young lawyers should consider drafting and serving requests under Rule 34 as early in the litigation as possible. The parties incurring the expense of discovery do not want to be mired in that process any longer than necessary. The proposed change to the timing of requests for production may help. The requests are considered served as soon as the first 26(f) conference takes place, ensuring that discovery commences at the earliest possible time. Serving the requests early also allows the parties to engage in meaningful and "focused discussion" regarding discovery during the Rule 26(f) conference. Committee Report, supra, at B-45. This can make the discovery process more efficient from the very beginning.
Prepare to defend all proportionality objections. Even though the committee proposed changes to Rule 26 to reduce costs and delay, young lawyers should be prepared to defend every request and objection. The scope of discovery under proposed Rule 26 is still broad, and courts will have to determine exactly how to balance all the factors in the proportionality analysis.
It is important for the lawyer in charge of collecting and producing documents to have a deep understanding of the universe of potentially responsive documents. It is often a young lawyer who prepares the first draft of discovery responses and compiles the documents to be produced. It is important for that lawyer to know all the factors in the proportionality analysis and how they apply to a particular case. The comments to proposed Rule 26 are vital to a thorough understanding of the rule. For example, the committee explains that computer-based searching can reduce the burden of responding to discovery. Parties should, therefore, consider whether computer-based searching could resolve a party's objections before asking the court to intervene in the dispute. Committee Report, supra, at B-42. A careful review of the comments will give you insights into the rule and its application.
Keep in mind that case law interpreting the new rules will develop quickly. So check your jurisdiction for new cases regularly and review developments in this area of law each time you are crafting objections, conferring with the other parties, or writing motions to compel.
Articulate your objections. The comments to proposed Rule 26 explicitly forbid a party from simply making "a boilerplate objection that [the request] is not proportional." Committee Report, supra, at B-39. Those of us drafting responses must understand the new boundaries to discovery created by the proportionality analysis andhow to articulate why certain requests are outside the scope of discovery.
While proposed changes to Rule 34 are not the focus of this article, young lawyers should be aware of one important modification. Proposed Rule 34(b)(2)(C) requires a party asserting an objection to "state whether any responsive materials are being withheld on the basis of that objection." Committee Report, supra, at B-52.
Go beyond the amount at stake. When drafting objections or responding to motions to compel, the responding party might be tempted to rely heavily on the "amount in controversy" factor to limit the scope of discovery. The committee deemphasized the importance of the amount in controversy by listing "the importance of the issues at stake" as the first proportionality factor. Although the amount in controversy should be considered in the proportionality analysis, the committee deemphasized that factor to avoid "any implication that the amount in controversy is the most important concern." Committee Report, supra, at B-8. As the comments note, many lawsuits "seek relatively small amounts of money, or no money at all, but . . . seek to vindicate vitally important personal or public values." Committee Report, supra, at B-42.
Understand ESI. Most lawyers engaging in business and commercial litigation understand the importance of ESI. It has become ubiquitous. Lawyers must understand their clients' data-retention policies and systems to ensure their clients properly preserve ESI. Under the proposed rule, it is also important for lawyers to understand (or hire an expert who understands) what "reasonable steps" a client can take to avoid destruction of ESI. Although the committee recognizes that floods, virus attacks, server crashes, and glitches in the cloud can destroy ESI, the committee instructs courts to consider "the extent to which a party knew of and protected against such risks." Committee Report, supra, at B-61. Lawyers involved in document collection should consider interviewing the clients' IT department to ensure they understand whether the clients' document-retention policies and the steps the client is taking ensure the protection of ESI.
The committee acknowledges that it is "often impossible" to perfectly preserve all ESI because of the enormous amount of ESI that is produced and stored on companies' servers. Committee Report, supra, at B-60 to -61. Moreover, the comments state that the proposed change to Rule 37 does not impose a new duty to preserve. Committee Report, supra, at B-59.
Posture of Proposed Rule Changes
The proposed changes were reviewed by the Supreme Court, and the rules adopted by the Supreme Court were submitted to Congress on April 29, 2015. If the changes to Rules 26 and 37 are passed by Congress, they will go into effect on December 1, 2015.
Keywords: litigation, commercial, business, Federal Rules of Civil Procedure, Rule 26, discovery, Rule 37, electronically stored information