Another concern of plaintiffs is that the proportionality concept may induce a judge to engage in cost-shifting—making the plaintiff pay for the defendant’s costs of producing electronically stored information (ESI). Here, counsel should point to comments in the Advisory Committee report on these rules, which indicate that the practice of cost-shifting should not be routine and that the rules do not place a new burden on the plaintiff to address all proportionality issues.
Another one of the useful factors under new Rule 26(b)(1) for plaintiffs is “the parties’ resources.” In the usual tort cases, the plaintiff has few resources, while the major corporate defendant has many. We should remind the court that this says “parties”—the plaintiff, and not the plaintiff’s counsel. On the other hand, some other of the six factors may not help plaintiffs, including the amount in controversy and the burden of producing discovery versus the benefits.
Turning to positive provisions of the new rules, we can start with the change to Rule 34(b)(2)(A), which now allows a plaintiff to “deliver” a document demand to defense counsel 21 days after service—even though there has been no Rule 26 or Rule 16 conference. The demand is then deemed served after the first Rule 26(f) conference. We actually engaged in this practice, in a morcellator case, serving the demand precisely on December 1st. A useful by-product of that approach is that when the defendant moves against the complaint under Rule 10(b)(6), we can point to the documents we demanded and need in order to respond.
Another boon for plaintiffs—if defendants adhere to it and if courts enforce it—is the ban on the use of boilerplate objections in making discovery responses. Under Rule 34(b)(2)(B), the defendant must specify the objections to production, and under Rule 34(b)(2)C) must indicate whether, pursuant to that objection, documents have been withheld. This, it is hoped, will end the gamesmanship that goes on—on both sides.
The rules changes also envision the judge taking a more active role in Rule 16 conferences and managing discovery (or to do the same through a magistrate). Holding a live conference before the judge is strongly preferred. At that time, ESI will be a major topic for the case management order. The old concept of the defendant being asked to allow an inspection is replaced by the ESI reality that what is sought is production, and the defendant may produce the documents directly in response to a demand.
The Rule 16 court is now specifically asked to consider holding an oral pre-motion conference where the motion involves discovery, such as to compel or to quash. There is a concern here that the defendant may want to present expert testimony as to the difficulties of producing ESI, which would ensnare the plaintiff in unnecessary expense in proving the availability of evidence. However, there are statements in committee notes that there should be no “discovery on discovery,” i.e., calling dueling experts to say what it would cost to locate and produce documents in useful formats.
There is another change to Rule 26 that may be seized on by defense counsel—namely, the description of the scope of discovery as “reasonably calculated to lead to discovery of admissible evidence” has been replaced with the statement that the information sought “need not be admissible in evidence to be discoverable.” Plaintiffs should argue that this is the same standard, just rephrased.
If either party senses that it has a potential spoliation issue, that party should pay close attention to newly revised Rule 37(e), which codifies the type of sanctions a court may order. This is somewhere between tersely and unfairly worded. It will take proof of intentional destruction causing prejudice before a jury charge of spoliation is issued.
Last, there is an amendment to Rule 1 to state the obvious, but also an obviously important matter, that the parties themselves are involved in securing the goals of the federal procedure rules of just, speedy, and inexpensive determination. To which one might add that another goal is to get it right, regardless of speed and expense control.
Keywords: mass torts litigation, Federal Rules of Civil Procedure amendments, proportionality, relative access to information, parties’ resources, Rule 26, Rule 34(b)(2), Rule 37(e)