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November 30, 2015 Practice Points

How the December 1 FRCP Changes Affect Document Production and Failure to Preserve

A road map for navigating the new amendments that every litigator should consider moving forward.

By Megan Rose

On April 29, 2015, the U.S. Supreme Court adopted proposed amendments to the Federal Rules of Civil Procedure that aim to (1) inject proportionality into the discovery process, (2) require parties to be transparent and cooperative in their discovery responses, and (3) increase active case management of discovery by the judiciary. These rules will go into effect on December 1, 2015. The change to Rule 1 of the Federal Rules of Civil Procedure sets the stage for the theme of cooperation that the new rules aim to promote. Rule 1 adds language that states: “the rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Emphasizing early case management by the court and hopefully reducing costs over the long run, Rule 16 adds language about considering preservation of electronically stored information (ESI) in the scheduling order. In the same grain, Rule 26 has emphasized proportionality in the discovery process by moving the proportionality factors to the beginning of the rule. The factors that parties should consider are: “Parties may obtain discovery regarding any nonprivileged 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 . . . .” These factors have always been present in Rule 26, but by moving them to the top of the rule, the amendment emphasizes the need for parties to consider them before making discovery requests. Additionally, the standard that discovery is relevant if it has a possibility to lead to the discovery of admissible evidence has been removed and replaced with language that states that discovery need not be admissible, which ultimately limits the scope of discovery to what is permitted by Rule 26.

With the emphasis on cooperation and proportionality the new amendments also make changes to Rule 34 that alter the prior rule by requiring the party responding to requests for production to (1) provide greater specificity in objections; (2) produce responsive documents within a “reasonable time” (a new requirement to impose a date certain on production); and (3) give an express confirmation in its response whether documents are being withheld based on any stated objection. Finally, Rule 37(e) is changed in its entirety and the new rule initially considers the best way to get the information requested to the other party, rather than jumping to immediate sanctions. If the fact finder finds that the party intentionally destroyed evidence, and that the loss of this evidence will prejudice the party, the court may impose harsher penalties such as instructing the jury that it may consider all of the lost evidence to be unfavorable to the party, or may dismiss the action in its entirety.

This is not a comprehensive review of all of the changes in the rules, but covers the primary changes and provides a road map for navigating the new amendments that every litigator should consider moving forward. Both the courts and the parties will have to work together if the rules are going to prove successful.

— Megan Rose, Gordon & Rees LLP, Denver, CO

Copyright © 2015, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).