Recent Amendments to the Federal Rules of Civil Procedure Jeremy Fitzpatrick 402-231-8756 Jeremy.Fitzpatrick @KutakRock.com
December 2015 Amendments
December 2015 Amendments Discovery is out of control. Attorneys know it; judges know it; and clients know it. E-discovery just makes it more obvious. We have to figure out a way to fix it. Rebecca Love Kourlis (former Colorado Supreme Court Justice) (2008)
December 2015 Amendments Discovery: proportionality/relevance ESI: preservation standard Document requests Case progression
December 2015 Amendments The [December 2015] amendments may not look like a big deal at first glance, but they are. Chief Justice John Roberts
Proportionality/Relevance
Rule 26(b)(1) (proportionality/relevance) Scope in General (amended language): 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...
Rule 26(b)(1) (proportionality/relevance) Scope in General (prior language): Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party s claim or defense... Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
Rule 26(b)(1) (proportionality/relevance) Proportionality Factors: 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.
Rule 26(b)(1) (proportionality/relevance) Proportionality Factors: Moved from Rule 26(b)(2)(C) ( Limitations on Frequency and Extent to 26(b)(1) ( Scope in General ) Rule 26(b)(2)(C): [O]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules... if it determines that...
December 2015 Amendments The [December 2015] amendments may not look like a big deal at first glance, but they are. Chief Justice John Roberts
Rule 26(b)(1) (proportionality/relevance) Rule 26(g): Every... document request... must be signed by [an] attorney.... By signing, an attorney or party... certifies that... with respect to a discovery request... it is... consistent with these rules... [and] neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
Rule 26(b)(1) (proportionality/relevance) Advisory Committee Notes (Rule 26(g)): The present amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests....
Recent Cases (proportionality/relevance)
Recent Cases (proportionality/relevance) Parties may obtain discovery of any information that is relevant to any party's claim or defense and proportional to the needs of the case [.] R. 26(b)(1). Relevant information for purposes of discovery is information reasonably calculated to lead to the discovery of admissible evidence. (citing Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625 (9th Cir. 2005). Tedrow v. Boeing Employees Credit Union, 2016 WL 3190000 (W.D. Washington, May 20, 2016)
Recent Cases (proportionality/relevance) Despite the change in terminology for Rule 26(b)(1), the relevancy parameters remain.... '[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. (citing WWP, Inc. v. Wounded Warriors, 628 F. 3d 1032 (8th Cir. 2011)). Virgil v. Waste Connections of Nebraska, Inc., 2016 WL 1698285 (D. Neb. April 27, 2016)
Recent Cases (proportionality/relevance) The amendments... do not alter the basic allocation of the burden on the party resisting discovery to... specifically object and show that the requested discovery does not fall within Rule 26(b)(1)'s scope of relevance... or that a discovery request would impose an undue burden or expense or is otherwise objectionable or properly subject to a protective order. Curtis v. Metropolitan Life Ins. Co., 2016 WL 687164 (N.D. Texas Feb. 19, 2016)
Rule 26(c)(1)(B) (cost-shifting) Authorizes protective orders shifting the cost of discovery: specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery.
ESI/Rule 37(e)
ESI/Rule 37(e) Uniform Standard for Failure To Preserve ESI (1) If ESI that should have been preserved in anticipation of litigation or conduct of litigation (2) is lost because a party failed to take reasonable steps to preserve it and (3) it cannot be restored or replaced through additional discovery,
ESI/Rule 37(e) Failure To Preserve ESI (negligence) The court may, if there has been prejudice to another party from loss of the information Order measures no greater than necessary to cure the prejudice
ESI/Rule 37(e) Failure To Preserve ESI (intent) Adverse inference/dismissal only permitted when: (1) the party acted with intent (2) to deprive another party of the information s use in litigation
ESI/Rule 37(e) Advisory Committee Notes (37(e)): [P]erfection in preserving all relevant electronically stored information is often impossible. This rule recognizes that reasonable steps to preserve suffice; it does not call for perfection.
ESI/Rule 37(e) Key provisions: Rule 37(e) applies only to ESI Rule 37(e) applies to ESI that should have been preserved in anticipation of litigation Rule 37(e) does not apply where a party took reasonable steps to preserve the ESI but it was lost.
ESI (Rule 37) In its prior orders, the Court did not make any finding that NuVasive intentionally failed to preserve the text messages so that Defendants could not use them in this litigation. Instead, the Court found that NuVasive was at fault for not enforcing compliance with the litigation hold. Nuvasive, Inc. v. Madsen Medical, Inc., 2016 WL 305096 (S.D. Cal. Jan. 26, 2016) (granting motion for reconsideration of adverse inference ruling after new Rule 37(e) took effect)
ESI (Rule 37) It is clear from the language of (e)(2) as well as the Committee Notes that the adverse inference instruction that the Court was going to give falls within the measures that are not permissible absent a finding of intent. Nuvasive, Inc. v. Madsen Medical, Inc., 2016 WL 305096 (S.D. Cal. Jan. 26, 2016) (granting motion for reconsideration after new Rule 37(e) took effect)
ESI (Rule 37) The Court will allow NuVasive and Defendants to present evidence to the jury regarding the loss of electronically stored information and will instruct the jury that the jury may consider such evidence along with all other evidence in the case in making its decision. Nuvasive, Inc. v. Madsen Medical, Inc., 2016 WL 305096 (S.D. Cal. Jan. 26, 2016) (granting motion for reconsideration after new Rule 37(e) took effect)
ESI/Rule 37(e) Advisory Committee Notes (37(e)): [R]ule 37(e) forecloses reliance on inherent authority or state law to determine when certain measures should be used.
ESI/Rule 37(e) Advisory Committee Notes (37(e)): Cat3, LLC v. Black Lineage, Inc., 2016 WL 154116 (S.D.N.Y. Jan. 12, 2016) (issuing ESI sanctions based on either Rule 37(e) or the court s inherent authority).
Document Requests
Document Requests (Rule 34) Rule 34(b) (amendment) No boilerplate objections For each item or category, the response must... state with specificity the grounds for objecting to the request, including the reasons.
Document Requests (Rule 34) No longer allowed: The document request is overbroad and unduly burdensome. The document request is vague. Must be specific as to burden/vagueness
Document Requests (Rule 34) Rule 34(b) (amendment) Must identify if any documents are being withheld An objection must state whether any responsive materials are being withheld on the basis of that objection.
Document Requests (Rule 34) Rule 34(b) (amendment) No rolling productions The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.
Document Requests (Rule 34) No longer allowed: Subject to and without waiving its objections, [party] will produce any responsive, non-privileged documents in its possession, custody and control.
Case Progression (Rules 1, 4, 16 26(f)) Rule 1 Rule 4(m) Rule 16(b) Rule 26(d)(2)