As most attorneys who practice in federal court no doubt have heard, the Federal Rules of Civil Procedure recently were amended to call more clearly for cooperation among litigants and proportionality in discovery, as well as to clarify the penalties and burdens of proof related to failure to preserve electronically stored information (ESI). (The amendments also shorten the deadlines for service of summons and the initial scheduling conference under Rule 16, among other changes, but this article focuses on the amendments related more specifically to discovery.) Subsequent articles in this quarter’s edition of Woman Advocate drill down into specific subsets and effects on practice of the recent amendments—which took effect December 1, 2015. This introductory piece is, therefore, written to provide a high-level overview of the new amendments that are most significant to the conduct of discovery: the amendments to Rules 16, 26, 34, and 37.
February 23, 2016 Articles
A Reference Guide to the Federal Rules Amendments Related to Discovery
By Elizabeth T. Timkovich
Discovery Planning and Preservation
Rules 16 and 26 have been amended in numerous subsections affecting multiple facets of discovery practice—including, for starters, discovery planning and preservation. The most notable such changes are as follows (with strikethroughs and emphases added to show the changes between the former and current rules):
Rule 16. Pretrial Conferences; Scheduling; Management
. . . .
(b) Scheduling.
. . . .
(3) Contents of the Order.
. . . .
(B) Permitted Contents. The scheduling order may:
. . . .
(iii) provide for disclosure, or discovery, or preservation of electronically stored information; [and]
(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502[.]
Rule 26. Duty to Disclose; General Provisions Governing Discovery
. . . .
(f) Conference of the Parties; Planning for Discovery.
. . . .
(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:
. . . .
(C) any issues about disclosure, or discovery, or preservation of electronically stored information, including the form or forms in which it should be produced; [and]
(D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502[.]
These changes move the discussion of preservation and discovery planning more front and center, to encourage parties and judges to focus on preservation challenges and methods to decrease expenses associated with discovery—includingthrough the use of Rule 502(d) orders—earlier in the discovery process. It appears, from these (and other) changes to the rules that the days of “drive-by” Rule 26(f) conferences are over. Parties are expected to use 26(f) conferences to reach specific agreements on preservation, production format, and scope of discovery.
Timing and Sequence of Discovery
Rule 26 also was amended to add an entirely new subpart—26(d)(2)—governing “early” requests for documents under Rule 34:
(d) Timing and Sequence of Discovery.
(1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
(2) Early Rule 34 Requests.
(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:
(i) to that party by any other party, and
(ii) by that party to any plaintiff or to any other party that has been served.
(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.
(3) Sequence. Unless, on motion, the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:
(A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to delay its discovery.
“Early” document requests under Rule 26(d)(2) must be answered within 30 days of the parties’ 26(f) conference:
Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
. . . .(b) Procedure.
. . . .
(2) Responses and Objections.
(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or—if the request was delivered under Rule 26(d)(2)—within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
Under these revised rules, parties now may submit their document demands before the 26(f) conference—earlier than previously permitted—in order to spur the case along at a faster pace. The idea is that parties can use each other’s requests to help set the framework for an in-depth 26(f) discussion. What this means, in effect, is that we will have to undertake and prepare for discovery much earlier than before.
Discovery Scope and Limits: Requirements of Proportionality and Relevance
One of the most significant changes in the recent amendments for those of us who practice in federal court is the following amendment to Rule 26(b)(1) regarding the permissible scope of discovery your opponent (or you) may demand:
(b) Discovery Scope and Limits.
(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
What does this mean? No more fishing expeditions. The rules now are clear that lack of proportionality and/or relevance to an actual claim or defense constitutes a valid objection to overly broad and/or unduly burdensome discovery requests. This applies not just to production, but to preservation as well. In order for a party to demand that particular information be preserved or produced, that information must be relevant to actual claims or defenses (not just “reasonably calculated” to lead to admissible evidence) and the burden of preserving/producing that information must be proportional to the needs of the case.
Objecting to Document Requests
While our ability to object to discovery requests on the grounds of proportionality and relevance now is improved, it is very important for attorneys to note that such objections (in fact, objections on any grounds) must be specifically made. General objections no longer are allowed under the amendment to Rule 34(b)(2), below:
(b) Procedure.
. . . .
(2) Responses and Objections.
. . . .
(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection, The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.
(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.
Under these revised rules, parties should assert only those objections that are the actual bases of withholding specific categories of documents. If you intend to assert an objection on the basis of proportionality, for example, assert it with specificity and be prepared to back it up with supporting evidence (such as affidavits regarding data volumes and the high costs of preserving, searching out, reviewing, and/or producing certain information). Further, production must be completed either by the time for inspection stated in the request or by a later, reasonable time specifically identified in the response. If you need to produce documents on a rolling basis, be sure to specify reasonable start and end dates in your written response.
Clarified Standards for Sanctions
Until the recent amendments, different courts applied different standards to the imposition of sanctions for spoliation or failure to preserve ESI. For example, some courts required evidence of bad faith or wrongful intent before imposing severe sanctions, whereas others applied a lesser, negligence standard. The following amendment to Rule 37(e)—which completely replaces the prior rule—restricts imposition of sanctions to just those instances where relevant ESI actually was lost, is not replaceable, and prejudice resulted:
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions.
. . . .
(e) Failure to Provide Preserve Electronically Stored Information. 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. If electronically stored information 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, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Among the clarifications wrought by this rule change: If ESI was lost, but there was no actual duty to preserve it—e.g., because it is not relevant or there was no pending or reasonably foreseeable litigation—the destruction/loss is not sanctionable. Imposition of the most severe sanctions (adverse inference instructions, striking of claims, default judgment, and/or dismissal) requires actual bad-faith intent. A safe harbor protects entities who take reasonable steps to preserve, collect, and review documents. (“Reasonable steps” may tie back to proportionality.) And if sanctions are warranted, they should be no more severe than what is necessary to cure actual prejudice.
Conclusion
While the above-described rules changes are not a comprehensive list of all the 2015 Federal Rules amendments, they include the changes most likely to affect the day-to-day discovery practices of litigators with cases in federal court. For a complete guide to the recent amendments, visit the U.S. Courts’ website, which includes a link to a “Redline of Civil Rules Amendments (eff. Dec. 1, 2015).”
Keywords: litigation, woman advocate, Federal Rules of Civil Procedure, amendments, ESI, e-discovery, discovery, spoliation, sanctions, proportionality
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