More than 30 years ago, the Federal Rules of Civil Procedure were amended in an attempt to bring proportionality to discovery. Now, new rules with the same goal will take effect on December 1, 2015. We comment on what the changes are so that you can be prepared to the battles ahead.
Cooperation and Rule 1
Rule 1, as amended, provides that the civil rules “should be construed and administered, and employed by the court and the parties, to secure the just, speedy, and inexpensive determination of ever action and proceeding.” The intent of the amendment is clear: both the bench and the bar share the responsibility of cooperation. The theme of cooperation pervades many of the proposed amendments.
Proportionality and Rule 26(b)(1)
Under the proposed amendments, the scope of what is discoverable will now be determined by proportionality. The concept of proportionality is not new; it has been included in the federal rules since 1983. However, for various reasons, courts have avoided enforcing proportionality in favor of reasonableness. The amendment makes proportionality unavoidable. The amended rule reads 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 burdens or expense of the proposed discovery outweighs its likely benefit.
By moving proportionality to the top of the list of factors to consider, the amendment makes proportionality unavoidable. With that said, no one factor has greater importance, value, weight, or significance than another. Rather, all factors must be considered to determine the scope of discovery appropriate for the case. Notably, the amended version of the rule also does away with permitting any and all discovery that may be admissible. Under the new regime, discovery will be limited to what is discoverable per the Rules.
There are concerns that the amended rule places new burdens and obligations on the parties. In reality, the amendments do not change the substance of the rule. Rather, the amendments codify what lawyers are supposed to be doing in practice, but only ascribe to in theory (i.e., cooperation). The changes to the scope of discovery are not intended to deprive any party of the evidence needed to prove its claims or defenses. With the amendment, information must be relevant and proportional in order to be discoverable. However, the change will only make a difference so long as judges are willing to engage in active case management. Judges will need to intervene early and help parties identify the amount of discovery reasonably needed to resolve a case.
Case Management and Rule 16
To encourage effective case management, the amendments delete the language in Rule 16(b)(1)(B) that allows the scheduling conference to be held “by telephone, mail or other means.” Judges and lawyers now will actually have to speak to each other. Additionally, the time for holding the scheduling conference will be moved to the earlier of 90 days after any defendants has been served (reduced from 120 days) or 60 days after any defendant has appeared (reduced from 90 days). Finally, the proposed amendments add two subjects to the list of issues to be addressed in a case management order: the preservation of electronically stored information (ESI) and agreements reached under the Federal Rules of Evidence 502. The practical effect of this will be increased communication with the judge and shorter turnaround time for discovery tools such as Rule 26(f) Reports.
ESI and Rule 37(e)
Under the new regime, Rule 37(e) recognizes the existing common law duty to preserve information when litigation is reasonably anticipated. The amended rule applies when “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.” If reasonable steps are not taken and ESI is lost as a result, the rule directs the court to focus first on whether the lost information can be restored or replaced through additional discovery. If the ESI cannot be restored or replaced, Rule 37(e)(1) provides that the court can, “upon finding prejudice to another party from loss of the information may order measures no greater than necessary to cure the prejudice.” This provision deliberately preserves broad trial court discretion in imposing sanctions while limiting the application of sanctions to cases in which “the party acted with the intent to deprive another party of the information’s use in the litigation.” The practical effect of this will be more adverse inference jury instructions for the loss of ESI.
Putting the Amendments Into Practice
Going forward, the name of the game is cooperation; cooperation between the parties and cooperation between the bench and the bar. To achieve this, parties should engage in early, ongoing, and meaningful discovery planning. The operative word being “meaningful.” This also means that you should expect your judge to be more involved in the mechanics of the case. Additionally, in cases where there is likely to be voluminous or complex discovery, or in which there is likely to be significant disagreement about the relevance or proportionality, the parties should consider initially focusing discovery on the sources that are most clearly proportional to the needs of the case. There results of this discovery should be used to guide decisions about future discovery.
Special thanks to Hillary Ladov for her contributions to this post. For more information, please e-mail Bob Cosgrove .