Happy 2016! In addition to (hopefully) bringing good cheer, the new year will see federal courts shaping the contours of recently enacted changes to the Federal Rules of Civil Procedure. The amendments, which went into effect on December 1, largely relate to the bane — or, depending on your point of view, bread and butter — of litigation: discovery. This post does not provide an exhaustive discussion of the changes; instead, it provides a brief overview of two salient revisions.
Revisions to Rule 26(b)(1)
The Rule now reads:
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.
The notable change here, as relates to the impact on electronic discovery, is the addition of a section on how discovery needs to be proportional to the needs of a case, and the deletion of language that essentially invited intense focus on how relevant information was stored, as opposed to the substance of that information. Although prior versions of Rule 26 provided that discovery cannot be overly burdensome, and indeed invited a case-by-case analysis of burdens and benefits given the size of case, the explosion of e-mail, instant messaging, and texts (among other forms of electronic communications) rendered limiting language a nullity. Under the prior iteration of the Rules, it was not uncommon in cases involving corporate defendants for discovery to get bogged down in the minutiae of technical e-discovery issues. Although the revisions likely will not eliminate the focus on e-discovery minutiae, they are aimed at re-centering the focus of litigation where it should be: on the substantive merits. 2016 will tell what courts interpret “proportional” to mean.
Revisions to Rule 37(e)
The Rule now reads:
Failure to Preserve Electronically Stored Information. 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.
As with the change to Rule 26, this revision was made because of e-discovery practice. Corporate defendants commonly have standard data retention policies that automatically delete old data. Under the prior version of the Rules, these policies often became flash points over whether documents, information and data were spoliated. The amendment gives litigants the benefit of the doubt by requiring an affirmative showing of intent to deprive before punitive sanctions can be imposed.
Against the backdrop of these changes, one thing is for certain: even with the addition of proportionality language, and even given the requirement that an affirmative negative intent be proven before the imposition of punitive sanctions, e-discovery will continue to be a major focus of civil litigation under the Federal Rules. We will closely follow the courts as they interpret the newly-revised Federal Rules, and how those interpretations impact federal practice.