It’s been a long road, but the latest package of amendments to the Federal Rules focused on electronic discovery is nearly here. The process leading to the current proposals began with the Conference on Civil Litigation held by the Rules Committee at the Duke Law School in May 2010. Three public hearings were held, which included 120 witnesses. Also, over 2,300 written comments were submitted, including extensive feedback from a number of national groups. The amendments were collectively forwarded to Congress by the Supreme Court on April 29, 2015. If Congress does not adopt legislation to reject, modify or defer the amendments, they will become effective on December 1, 2015.
Below is a brief summary of the most important amendments in the 2015 package. They are organized into three general categories: case management; scope of discovery; and sanctions. Many of the changes are accurately described as merely providing clarification or emphasis on principles that are arguably already present in the Civil Rules. However, as summarized below, one area of meaningful substantive change can be found in the amendments to Rule 37, which are meant to provide a single national standard to guide trial judges in ordering the most severe discovery sanctions.
Proposed Amendments to Rules 1, 4(m), 16(b)(2), 26(d)(2)
Rule 1 is amended to emphasize that parties share a responsibility to secure the just, speedy and inexpensive determination of every action. The inclusion of the word “cooperation” was initially considered in the amended rule. Ironically, this proposal was ultimately rejected out of concern that some parties would abuse a new procedural tool that explicitly requires cooperation. The Official Comments clarify that the Rule 1 amendment does not create a new or independent source of sanctions, nor does it abridge the scope of any other rule.
Rule 4(m) reduces the time period for service of a complaint from 120 days to 90 days.
Rule 16(b)(2) reduces the time to issue the scheduling order to the earlier of either 90 days (not 120 days) after any defendant has been served or 60 days (not 90 days) after any defendant has appeared. Both amendments are designed to reduce delay at the beginning of litigation.
Rules 16(b(3) and 26(f)(3) add additional proposed topics for joint discovery plans and pretrial orders. Among these are evidence preservation and party agreements under Rule of Evidence 502. These amendments are supportive of a more active role by trial judges in the early stages of case management.
Rule 26(d)(2) will permit early delivery of Rule 34 document requests. While the requests can be delivered 21 days after service of the complaint, they become effectively served as of the date of the parties’ Rule 26(f) conference. This amendment is meant to encourage more focused discussions at Rule 26(f) conferences.
Scope of Discovery
Proposed Amendments to Rules 26(b), 26(c), 34(b)(2)
The amendments to Rule 26(b)(1) relocate the “proportionality” factors from present Rule 26(b)(2)(C)(iii). The amendments aim to provide clearer guidance on limitations that proportionality places on the scope of otherwise relevant discovery. The factors continue to be: “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.”
The new Rule 26(b)(1) also cleans up three areas that the Rules Committee found unnecessary or in need of clarification. The amendments remove language regarding the discovery of sources of information. They also remove the clause providing for the discovery of non-relevant information upon a showing of “good cause.” Finally, the sentence allowing discovery of information “reasonably calculated to lead to the discovery of admissible evidence” is rewritten. The new language will now read: “Information within this scope of discovery need not be admissible in evidence to be discoverable.”
Rule 26(c)(1)(B) is amended to include “the allocation of expenses” among the terms that may be included in a protective order. However, the Committee Note explains that this clarification does not mean that cost-shifting should become a common practice. The assumption remains that the responding party ordinarily bears the costs of responding.
Rule 34(b)(2)(B) is amended to require that objections to Rule 34 requests be stated with specificity. This amendment ties to the new provision in Rule 34(b)(2)(C), directing that an objection must state whether any responsive materials are being withheld on the basis of that objection. Together these amendments are meant to reduce avoidable delay in the discovery process.
Proposed Amendments to Rule 37(e)
Rule 37(e) focuses on the actions a court may take when electronically stored information (ESI) “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 amended rule uses the duty to preserve that which has been uniformly established by case law: the duty arises when litigation is “reasonably anticipated.”
Proposed Rule 37(e)(1) provides that the court, “upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.” This proposal preserves broad trial court discretion to cure prejudice caused by the loss of ESI that cannot be remedied by restoration or replacement of the lost information. It further provides that the measures be no greater than necessary to cure the prejudice.
Proposed Rule 37(e)(2) eliminates the circuit split on when a court may give an adverse inference jury instruction for the loss of ESI. It permits adverse inference instructions only on a finding that the party “acted with the intent to deprive another party of the information’s use in the litigation.”
A complete copy of the final rules and official comments can be found in the April 29, 2015 Transmittal Memorandum to Congress.