In April 2015, the U.S. Supreme Court adopted amendments to the Federal Rules of Civil Procedure that present the most sweeping changes to the discovery process in nearly a decade.
The new rules are designed to more narrowly tailor the permissible scope of discovery by injecting the concept of proportionality into the discovery process.
The amendments, which became effective in December, also require discovery responses to be more transparent and provide for greater and more active judicial oversight of the process.
It’s an attempt to lessen the burdens imposed on the parties by the proliferation of discovery of electronically stored information (ESI), which were introduced by amendments in December 2006.
Rule 16(b) provides the courts with discretion to enter a scheduling order governing ESI preservation issues. Although the rule is permissive, the expectation is courts will likely use this amendment to address ESI-related issues early in a case.
Perhaps the most impactful change, however, is Rule 26’s replacement of the former “reasonably calculated to lead to the discovery of admissible evidence” standard with a requirement that all discovery requests be “proportional to the needs of the case.”
The new text of Rule 26(b)(2)(1) states: “Parties may obtain discovery 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.”
One federal judge opined the point of the amendment is to change an existing “mind-set” that “it is good enough to hope that the information sought might lead to the discovery of admissible evidence.” See Gilead Sciences Inc. v. Merck & Co. Inc., (N.D. Cal. Jan. 13, 2016).
Consistent with this, the committee notes now provide that parties should consider technology as a means to reduce costs in cases involving substantial amounts of electronic data.
The new Rule 26(b)(1) also removed two loopholes that allowed for fishing expeditions.
First, the ability to obtain discovery about “the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of any persons who know of any discoverable matter” has been eliminated, thereby preventing “discovery about discovery.”
Second, the deletion of the “reasonably calculated to lead to admissible evidence” standard is intended to narrow the focus of discovery to issues that are central to the case.
The changes to Rule 34 also limit gamesmanship in responding to discovery.
It now requires specificity as to any grounds for objecting to a request, including identifying the reasons and whether any responsive materials are actually being withheld on the basis of an objection.
Parties no longer can rely on the assertion of general boilerplate objections that prevent the requesting party from knowing whether any documents have actually been withheld.
The best practice for a responding party is to provide specific grounds for any objection and describe any documents that will be produced subject to that objection.
For example: “Defendant ob-jects on the grounds that the request seeks documents not relevant to any claim or defense and not proportional to the needs of the case. Although the subject incident occurred in 2015, the request seeks documents dating back to 2000. Defendant will limit its production of documents to those dated since 2010, which are being produced simultaneously with this response, and any documents beyond the scope of this response will be withheld.”
New Rule 37(e) replaces the former rule in its entirety and provides clear guidelines as to the scope of a party’s duty to preserve information and the circumstances necessary to warrant sanctions when a party fails to do so.
The new rule thankfully does not require perfection, but rather requires a party to take “reasonable steps” in the preservation of ESI.
Whether a party’s preservation efforts are reasonable require the consideration of: (1) the routine, good faith operation of an electronic information system, (2) a party’s sophistication and (3) proportionality.
The imposition of sanctions will depend on whether a party had “intent to deprive” the requesting party of ESI, with the most severe sanctions reserved for parties whose actions demonstrate such intent.
The clear intention of these amendments is to increase the predictability and decrease the cost of discovery by expanding the role of the parties to share the courts’ responsibility under Rule 1 to secure the “just, speedy and inexpensive determination of every act and proceeding.”