As of Dec. 1, amendments to the Federal Rules of Civil Procedure 1, 4, 16, 26, 30, 31, 33, 34, 37, 55 and an abrogation of Rule 84 and the Appendix of Forms take effect. The “most significant amendments” are to the discovery rules, particularly the substantial revisions made to Rules 26, 34 and 37.
According to attorneys Mark W. McInerney and Thaddeus E. Morgan, Michigan members of the Standing Committee on United States Courts, the amendment to Rule 26 “restores the proportionality factors to their original place in defining the scope of discovery.” Per the advisory committee note, the amendment is intended to impose a “collective responsibility” on the parties and the court in considering proportionality and discovery. The amendment to Rule 26(b)(1) uses language that clarifies that the “limitation on discovery is not expanded by discovery claimed to be ‘reasonably calculated’ to lead to the discovery of admissible evidence.”
Meanwhile, the amendment to Rule 26(c)(1)(B) includes an express provision that “allows the court to shift the cost of providing discovery in the context of protective orders.” The pair notes that the committee cautioned that this amendment doesn’t mean that cost-shifting should become the norm.
Lastly, under the amendment to Rule 26(d)(2), a party is permitted to deliver Rule 34 requests for production documents in advance of Rule 26(f) conference.
Per Rebecca Rutherford, Judicial Law Clerk for the Northern District of Texas, Dallas, the amendment to Rule 34(b)(2) means that boilerplate objections are out, objections stated with specificity are in. Parties must state not only whether responsive documents are being withheld, but also they must provide a reasonable time for production.
McInerney and Morgan note that the amendment to Rule 34(b)(2)(C), which requires the objecting party to expressly tie each objection to a refusal to produce, is intended to “eliminate the uncertainty that results when the responding party states one or more objections and then produces documents, making it unclear which, if any, documents are being withheld because of the objection(s).”
Originally enacted in 2000, Rule 37(e) has struggled to address the ESI explosion. Last year, we blogged as the advisory committee met to discuss and work through the proposed change. Additionally, sanction standards have varied depending on the federal circuit. Furthermore, parties have spent great time and money in order to avoid being sanctioned by a court that decides the effort was inadequate.
Per attorneys Matthew Eisenstein, Robert J. Katerberg, Michael A. Rubin, Anthony F. Cavanaugh and Leigh-Anne St. Charles of Arnold & Porter LLP, who consider the amendment to Rule 37 one of their notable top five to go into effect on Dec. 1, the “risk of runaway sanctions” will now be reduced. If lost ESI results in prejudice to a party, then measures may be ordered but they must be “no greater than necessary to cure the prejudice.” If there was an intent to deprive the other party of the information, then the court may impose harsher sanctions, including:
- (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.
The committee reminds counsel that this rule is based on a common-law duty and does not attempt to create a new duty to preserve. Additionally, the rule does not apply when information is lost before a duty to preserve arises.
As Jones Day concluded, by expediting the resolution of issues and matters and curtailing discovery costs, these amended rules will alter the discovery landscape.