The Times (or Federal Rules of Civil Procedure) Are A’Changing.

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 .

An Update on Discovery and Social Media Accounts

Given the current state of social media and the focus on an online presence, it is no surprise that people often reveal a great deal about themselves through photographs and posts.  Oftentimes, even personal injury plaintiffs continue to update their social media “circle” about various parts of their life even with their lawsuit pending.  New York Courts have previously ruled that a person’s Facebook page is discoverable, but many details as to when and how are still being litigated.

In Melissa “G” v. North Babylon UFSD, et al., the plaintiff sued for personal injuries sustained as a result of sexual contact she had with one of her teachers.  As part of her claim, the plaintiff alleged she suffered a loss of enjoyment of life.  The Court explained that CPLR 3101(a) broadly mandates full disclosure of all things material and necessary in the prosecution or defense of an action.  Where a defendant shows that information on social media websites is relevant or reasonably calculated to lead to the discovery of information bearing on a plaintiff’s claim, such material must be produced.  The Court further reasoned that to warrant discovery, “defendants must establish a factual predicate for their request by identifying relevant information in [the] plaintiff’s Facebook account – that is, information that ‘contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses.’”

The Court clarified the process of selecting what portions of the plaintiff’s Facebook page had to be exchanged.  While it has been suggested that an in camera review is appropriate to determine whether certain material on a Facebook account is discoverable, “an in camera inspection in disclosure matters is the exception rather than the rule, and there is no basis to believe that plaintiff’s counsel cannot honestly and accurately perform the review function.”

Therefore, while the law surrounding disclosure of a personal injury plaintiff’s social media accounts is still developing, defendants should be mindful that the plaintiff’s attorneys will most often be the party sorting through the pictures and the posts to determine their relevance in relation to the claims made.

Thanks to Jeremy Seeman for his contribution to this post.



Dennis Wade Speaks at the New York State Bar Association

Dennis Wade is a speaker at the New York State Bar Association program entitled: 2014 Law School for Insurance Professionals.  Dennis’s submission is entitled:  Assault on the Citadel of Privilege: Bad Facts Make Really Bad Law.  The program brochure is attached.

If you have any questions about the program or the materials, please email Dennis at


Diana Mauriello                                                                                                                           Communications Director

Access to Social Media Accounts: “Material and Necessary” or a “Fishing Expedition”?

In today’s social media age, plaintiffs often post photographs and other updates on social media sites that can have some bearing on a defendant’s damages case.  This issue of access to a plaintiff’s social media page is often one of discretion, left up to the trial judge on a case by case basis.

In Del Gallo v. City of New York, the defendants sought a whole host of items that plaintiff objected to, including access to plaintiff’s “LinkedIn” account.  In determining whether parties were entitled access the court utilized a two pronged test.  First, it determined whether the content in the account was material and necessary, and then it balanced whether the production of the content would result in a violation of the account holder’s privacy rights.  The court noted that to warrant such discovery, “defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s [social media] account — that is, information that ‘contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” “Absent some facts that the person disclosed some information about the subject matter of the pending law suit, granting carte blanche discovery of every litigant’s social media records is tantamount to a costly, time consuming ‘fishing expedition.'”

In Del Gallo, the plaintiff testified that she communicated with former colleagues on LinkedIn regarding her post accident condition, and communicated with employment recruiters.  Defendants argued that since plaintiff claimed that she had been “totally disabled” and “partially disabled” from working since the accident, they were entitled to discovery of plaintiff’s LinkedIn account “to learn about plaintiff’s on-line description of her employment abilities, any employment offers she may have received, her acceptance of any offers, and so forth which will help to determine the amount of damages.”  The court held that the defendants were entitled to information pertaining to plaintiff’s communications with recruiters and others, related to job offers and inquiries, searches, and responses, if any, available on her LinkedIn account.  The defendants were not, however, entitled to discovery of plaintiff’s communications with former colleagues inquiring about her condition, or to all other material on plaintiff’s LinkedIn account.

As was the case here, judges typically will not allow unfettered “fishing expeditions,” into a social media account.  They will allow a defendant access where they establish that there is information “material and necessary,” to the defense.  Accordingly, it is incumbent upon the defendants to inquire at depositions and elicit relevant information pertaining to the social media accounts, so there is a factual basis to obtain the requisite access.

For any questions about this post contact

Social Media Networks: Access Denied

In the current age of electronic discovery, social media networks provide an insight into a plaintiff’s state of mind and daily activities, which was once otherwise impossible to obtain. In a blow to the defense, the First Department recently held that a plaintiff’s mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account’s usage. In Tapp v. New York State Urban Dev. Corp., the defendant sought an authorization for plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived. In affirming the lower court’s denial of defendant’s request, the First Department held that to warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account. Specifically, they need to identify information that “contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” Given an individual’s ability to close their Facebook page to the public, and place various restrictions on who may access the content contained on their profile page, the First Department’s ruling makes it increasingly difficult to obtain access to social media networks, which may be a useful tool in challenging a plaintiff’s credibility at the time of trial.

E-Discovery Is Not Recoverable as Costs in the Third Circuit.

In the case of Race Tires America v. Hoosier Racing Tire, the Third Circuit was faced with the question of whether more than $365,000 in e-discovery charges were “costs” under 28 USC 1920(4).  The issue, for which there is little precedent, is of some moment as, pursuant to Fed. R. Civ. P. 54(d)(1), the losing party in a federal litigation has to pay the winning side’s “costs” for, among other things, “fees for exemplification [or] the costs of making copies of any materials where the copies are necessarily obtained for use in the case.”  In Race, the Third Circuit concluded that “the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD” were “costs”, incurred by the prevailing party, which the losing party had to pay.  The balance of the e-discovery charges was not recoverable.  It just goes to show that winning isn’t everything, it’s sometimes not even the only thing.

For more information about this post, please contact Bob Cosgrove at

USA! USA!: Home Court Advantage in Philadelphia Discovery Dispute.

We have spent many a megabyte warning of the perils of e-discovery and, some of you have even been subjected to our e-discovery seminar.  What we have found over the years, is that the concept of e-discovery can be hard to grasp, certainly for US insurers and most definitely for foreign insurers (especially those located in London…not to name names or anything).

In the case of Trueposition v. LM Ericsson, Judge Kelly of Philadelphia’s federal district court was confronted with the question of whether, as the defendant suggested, a French company could argue that it should not be subjected to onerous US discovery obligations, but rather the less onerous (in terms of scope of discovery) but more complicated (because lawyers would have to get permission to conduct certain types of discovery from the French Ministry of Justice) Hague Convention on the Taking Evidence Abroad in Civil or Commercial Matters.  Judge Kelly rejected the defendant’s claim and instead ruled  that US discovery rules applied.  The court specifically ruled that the US had a greater interest in having its rules applied than the French government did.  One doubts that French court would have reached a similar conclusion.  But the important lesson to draw is – if you do business in the US, you’d better ensure that you understand the nature and scope of e-discovery.

For more information about this post, please contact Bob Cosgrove at