Good Bye “Any and All,” Hello Proportionality

An Overview of the December 2015 Changes to the Federal Discovery Rules
By 
Mark E. Bale, Esq.
Schwartz Semerdjian Cauley & Moot, LLP
Published:  03.01.2016

On December 1, 2015, changes to the Federal Rules of Civil Procedure (“FRCP”) affecting discovery and disclosure became effective for all pending and future cases.  The amendments include revisions to FRCP 1, 16, 26, 34 and 37.  The overriding goal of the amendments appears to be to enhance cooperation and proportionality in the discovery process while reducing the expense and burden to litigants dealing with discovery of electronically stored information (“ESI”).  The Advisory Committee Notes on the 2015 Amendments are an excellent resource for those interested in understanding the practical considerations associated with the specific changes and the rationale behind the rule amendments.  It is also enlightening to review the new language of the rules against the language that was eliminated.  Below is an overview of certain changes to the rules (with old language stricken and the new language underlined) and some thoughts on how the application of the new rules will affect litigants in the context of discovery.  

Rule 1 – Scope and Purpose

Relevant Amendments to the Text of the Rule:

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

Comments:

The amendment emphasizes that parties themselves must share responsibility with court to ensure the just, speedy, and inexpensive determination of action.

Rule 16 – Pretrial Conferences; Scheduling; Management 

Relevant Amendments to the Text of the Rule:

(b) Scheduling.

(1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge—or a magistrate judge when authorized by local rule—must issue a scheduling order:

(A) after receiving the parties’ report under Rule 26(f); or
(B) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference by telephone, mail, or other means.

(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any event unless the judge finds good cause for delay, the judge must issue it within the earlier of 12090 days after any defendant has been served with the complaint or 9060 days after any defendant has appeared.
(3) Contents of the Order.

* * * * *

(B) Permitted Contents. The scheduling order may:

* * * * *

(iii) provide for disclosure, or discovery, or preservation of electronically stored information;
(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;
(v) direct that before moving for an order relating to discovery, the movant must request a conference with the court;
(vvi) set dates for pretrial conferences and for trial; and
(vivii) include other appropriate matters.

Comments:

The amendment encourages in-person scheduling conferences with court (rather than by phone or mail) and reduces time to issue scheduling order to earlier of 90 days after any defendant is served or 60 days after any defendant appears.  The amendment also contemplates that scheduling orders may: provide guidance or direction on preservation of ESI; include agreements among the parties regarding inadvertent disclosure of attorney–client communications or attorney work product pursuant to Federal Rule of Evidence (“FRE”) 502; and require the parties to request a court conference before moving for a discovery order, which more judges seem to be requiring these days.  

The amendments to this rule seem likely to facilitate early communication among attorneys about potential discovery issues and create a collaborative process between counsel and the Court in working through those potential issues to promote efficient and effective case management.

Rule 26 - Duty to Disclose; General Provisions; Governing Discovery

Relevant Amendments to the Text of the Rule:

(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).

(c) Protective Orders.

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

* * * * *

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or 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;

(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;

* * * * *

Comments:

The most significant of the discovery rule amendments may be the amendments to Rule 26 limiting the general scope of permissible discovery.  Discovery must now be “proportional to the needs of the case,” taking into account the many factors identified in the new language, none of which will necessarily be weighed more heavily than others, but any of which may have more significance depending on the nature of the case and the litigants.  The rule limits discovery to information “relevant to parties' claims or defenses,” rather than the general “subject matter involved in the action.”  Gone is the “reasonably calculated to lead to the discovery of admissible evidence” standard.  The days of the “any and all” discovery requests are behind us.  Litigants will be required to more specifically tailor their discovery requests to comply with the rule.   

The rule now also codifies the use of protective orders to allocate discovery costs, requires discovery plans to address issues regarding ESI preservation, and suggests the inclusion of agreements reached under FRE 502 in the discovery plan.1

Rule 34 - Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

Relevant Amendments to the Text of the Rule:

(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.
(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.

Comments:

The amendments to this rule deal with responses and objections to document production requests.  Importantly, now a party responding to a document production request must make objections with specificity and state whether it is withholding any responsive documents on the basis of a stated objection.  While a full blown privilege log need not be prepared, a responding party must at least provide a categorical description of the documents that are not being produced based on a particular objection.  

The amended rule also contemplates the complex nature of ESI discovery and provides that a responding party may comply with a production demand by stating that it agrees to provide copies of documents or ESI and then providing the documents or data in the time specified in the request “or another reasonable time specified in the response.”  This will provide some leeway for compliance with the rule when good faith efforts to locate and produce documents or data are time consuming and will provide justification for rolling productions of information as it is able to be located by the producing party.

Rule 37 - Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

Relevant Amendments to the Text of the Rule:

(e) Failure to ProvidePreserve 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.

* * * * *

Comments:

The significant amendment to Rule 37 relates to sanctions for a litigant’s failure to preserve ESI.  Given the varying data retention policies employed by companies, the ever changing and evolving computer systems and networks being used, and the increasing prevalence of cloud data storage, the concept of ESI preservation may seem daunting.  However, the rule amendment deals primarily with remediation as opposed to punishment.  The goal of the rule is to fix the problem.  If ESI was not preserved but the information can be obtained through a different source, no sanctions would likely result.  Even if the information cannot be obtained from another source, the Court may sanction a party with “measures no greater than necessary to cure the prejudice.”  Only where the failure to preserve was intentional will the Court be allowed to order more drastic sanctions.


1 For a more detailed discussion of the use and importance of FRE 502(d) orders, see this author’s October 2015 article in this space, a copy of which can be viewed at the following link: https://www.schwartzsemerdjian.com/trial-bar-news/evolving-responsibilities-for-attorneys-in-esi-discovery