In December 2015, the United States Supreme Court adopted several amendments to the Federal Rules of Civil Procedure, which govern civil litigation in federal court. These amendments focus on proportionality and reduction of litigation costs, in keeping with the stated spirit of the Federal Rules. Some of the most significant changes include: (a) limiting the scope of discovery to information that is relevant to a party’s claim or defense; (b) encouraging a court to allocate discovery expenses to avoid undue burdens; (c) clarifying sanctions regarding the loss of electronically stored information (“ESI”); and (d) reducing the amount of time to serve a summons after filing an action.
RULE 26: DOCUMENTS MUST BE “RELEVANT” AND “PROPORTIONAL,” RATHER THAN JUST REASONABLY CALCULATED TO LEAD TO ADMISSIBLE EVIDENCE
Under the language of amended Rule 26, information is now discoverable if it is “relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). The prior, broader language restricted discoverable information to that which would be “reasonably calculated to lead to the discovery of admissible evidence.” Advisory Committee’s Notes on 2000 and 2015 Amendments to Fed. R. Civ. P. 26. The new Rule narrows the universe of discoverable information and emphasizes the parties’ obligation to consider proportionality in their discovery requests.
Federal courts should weigh several factors when making a determination of relevance and proportionality under the new Rule, including the importance of the issues at stake, the amount in controversy, the parties’ access to relevant information and resources, the usefulness of discovery in resolving the conflict, and the burden versus benefit of allowing production. By narrowing the scope of discoverable information, the amendment will likely involve earlier and additional judicial management of a case.
Rule 26 was also amended to provide greater authority for courts to issue cost-shifting orders, which determine the allocation of expenses for certain discovery by “specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery.” Fed. R. Civ. P. 26(c)(1)(B). This change is intended to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). While courts already recognize and use this authority, explicit acknowledgment in the Rule may prevent parties from challenging this authority.
RULE 37(E): FEDERAL COURTS MUST NOW CONSIDER SEVERAL THRESHOLD ISSUES BEFORE ISSUING SANCTIONS REGARDING THE DESTRUCTION OF ELECTRONICALLY STORED INFORMATION
Rule 37 provides for sanctions for a party’s failure to make disclosures or cooperate in discovery. The rule has been tested over the years due in part to the ever-increasing use of e-discovery and the differing opinions among federal courts regarding the level of appropriate sanctions for parties who negligently lose or destroy ESI. The new Rule 37(e) imposes a number of thresholds that must be met before a court can levy sanctions on a party that has lost or destroyed ESI, including a failure by the party to take “reasonable steps” to preserve ESI (such as failing to implement and maintain an ESI system). The amendments to this Rule eliminate sanctions for the merely negligent loss or destruction of ESI, which federal courts, most notably in New York, had previously imposed. The new Rule should help ease the burden on organizations to comply with different maintenance and retention requirements of various federal jurisdictions.
RULE 4: SUMMONS MUST BE SERVED WITHIN 90, NOT 120 DAYS
The 2015 amendments also reduce the time between the filing of a complaint and service of a summons on the opposing party from 120 days to 90 days. Fed. R. Civ. P. 4(m). This change furthers the goal of a “just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.
The 2015 amendments to the Federal Rules of Civil Procedure are designed to increase the speed and efficiency of litigation, while simultaneously decreasing cost. The changes regarding e-discovery should especially help resolve cases more efficiently and on the merits. These changes promise to be a positive step for any organization engaged in litigation, as a federal court’s powers to manage a case and ensure compliance with its directives are more concretely established. The changes will also streamline the litigation process in federal courts and reduce the burden of complying with difficult standards that varied across jurisdictions prior to the implementation of the amendments. Courts are already applying the new rules, which went into effect on December 1, 2015, unless doing so would create a manifest injustice or prejudice the parties, a determination left to the court’s discretion.