In the spring of 2015, the Supreme Court of the United States approved certain amendments to the Federal Rules of Civil Procedure to go into effect December 1, 2015. While the amendments included several small or clerical changes, a total of three alterations stand out as particularly worthy of the wary litigator's attention.
First, Rule 26(b)(1) contains a new "proportionality test" that has already changed the landscape of discovery disputes. Omitted is the old, familiar statement: "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." This phrase was often mischaracterized as the scope of discovery pre-December 1, 2015, although astute readers will recognize that the actual scope of discovery was (and remains) the ability to "obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense . . . ." Instead of the "reasonably calculated" language, the new Rule 26(b)(1) states that parties may obtain discovery regarding non-privileged matters 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." Id. (emphasis added).
Across the nation, litigators are wondering if the new language of Rule 26(b)(1) contemplates some sort of paradigm shift in the manner in which the federal courts expect discovery to be conducted. Before making any such sweeping pronouncements—which necessarily would suffer from the fact that this author was not on the Advisory Committee and has not interviewed any such member—however, it is important to note that much, if not all, of the new Rule 26(b)(1)'s language is from the old Rule 26(b)(2)(C)(iii). The difference, of course, is the emphasis, and the restatement of these principles in Rule 26(b)(1) is equivalent of a promotion from a late night talk show to a (slightly) more primetime spot.
Next, the cost allocation regime under Rule 26(c) has changed somewhat. Whereas in the heady days preceding December 1, 2015, the ability to defer the cost of producing discovery to the requesting party was part of the common-law toolbox for judges desirous of controlling the discovery practices of the litigants practicing before them, new Rule 26(c) contains the explicit allowance that a court may for good cause issue an order "specifying the terms, including time and place or the allocation of expenses, for the disclosure or discovery" sought. Id. (emphasis added). As a result of the codification of cost allocations, such deferments are likely to become far more commonplace, limiting fishing expeditions at discovery.
The new Rule 37(e), concerning spoliation, may be alarming to many litigators for one simple reason: the Rule's "safe harbor" provision has been withdrawn! Old Rule 37(e) stated only that "absent exceptional circumstances," a court could not impose sanctions for a party's failure to provide ESI lost as the result of the "routine, good-faith operation of an electronic information system." Id. Now, however, the Rule speaks affirmatively: if ESI that should have been preserved in anticipation of litigation is lost because a party failed to take "reasonable steps" towards its preservation, and it cannot be restored or replaced through other discovery, the court can enter Rule 37 sanctions, even without a finding of prejudice. Id.
Other changes to the Rules are far more limited, but bear notice nonetheless: (1) Rule 26(d)(2)'s change allowing any party to serve Rule 34 requests more than 21 days after that party has been served with process (regardless of whether a Rule 26(f) conference has occurred); (2) objections to Rule 34 requests must now be stated with specificity and reveal if any responsive material is being withheld; (3) Rule 37 now allows for sanctions for failure to produce copies of documents or ESI, not just for the failure to allow their inspection; and (4) the time for service has been reduced from 120 days to 90 days pursuant to the new Rule 4.
The new Rule 26(b)(1) contains language that seems new, but is really from the old Rule 26(b)(2)(C)(iii). The difference is emphasis, with an impliedly increased focus on reducing the discovery costs of defendants. Consider how this heightened emphasis will likely increase discovery motions. Is the new language more or less subjective?
Protective orders are expressly contemplated as including a request that the court allocate the expenses of discovery efforts under the new Rule 26(c). Fishing expeditions are likely a thing of the past, at least in federal court.
No more "safe harbor" provision under Rule 37(e). Parties will now have to rely on a showing that whatever steps they took to preserve ESI were "reasonable" under the circumstances.