United States: Upcoming Changes To Federal Rules Of Civil Procedure: Modernizing Scope Of Discovery And Clarifying Consequences Of Failure To Preserve

Last Updated: September 23 2014

If you practice in federal court, pay close attention to the changes to the Federal Rules of Civil Procedure arriving in 2015.  Implementing the so-called "Duke Rules Package" developed at a 2010 Federal Rules Advisory Committee meeting held at Duke University, upcoming changes recommended by the Advisory Committee focus on three main areas:  (1) early judicial case management; (2) the scope of discovery and (3) litigants' failure to preserve electronically stored information.

A. Speeding things up.  Many of the proposed changes are intended to reduce delays at the beginning of litigation.   Proposed Rule 4(m) shortens the time period for serving a defendant 120 days to 90.   If service is not effected by that point, the court may dismiss the suit for failure to prosecute.  After service, the initial scheduling conference pursuant to proposed Rule 16(b)(1) must "involve direct simultaneous communication"—whether in person, by telephone, or by videoconference—the Rules Committee believing that direct communication will avoid time delays created by correspondence. 

Further streamlining is seen in proposed Rule 16(b)(2), which requires the  judge to issue a scheduling order 90 days after any service upon defendant (reduced from 120 days) or 60 days after any defendant has appeared (down from 90).  Similarly, the new Rule 26(d)(2) allows discovery to start earlier:  Rule 34 Requests for Production are permitted 21 days after service of process, even if this is before the discovery "kick off" of the initial Rule 26(f) scheduling conference.

B.  Proportionality is key to scope of discovery.  In order to limit ever-increasing discovery costs, the Advisory Committee made wholesale changes to Rule 26(b)(1), which defines the scope of discovery.  The new Rule 26(b)(1) limits discovery to that which is "proportional to the needs of the case" and provides five illustrative factors for courts to consider. 

Another notable change to Rule 26(b)(1) is to eliminate the phrase "reasonably calculated to lead to the discovery of admissible evidence."  Generations of lawyers have labored under the misimpression that the scope of federal discovery is so broad that anything "reasonably calculated to lead the discovery of admissible evidence" is fair game.  The Rules Committee tried without success to revise that sentence in previous proposed amendments, and has written committee notes making clear that it does not establish a bedrock definition for the  scope of discovery.  Nevertheless, many practitioners and courts stick to the notion that a litigant can obtain discovery of virtually anything that's "reasonably calculated" to lead to something helpful in the case.  Accordingly, the Advisory Committee eliminated this language in order to emphasize that discovery should not be permitted beyond the defined scope.  (See April 10-11, 2014 Report of Advisory Civil Rules at 86-87.) 

These changes will amend Rule 26(b)(1) as follows:

Current Rule 26(b)(1) (emphasis added)

Scope in General. 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— including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

Proposed Rule 26(b)(1) (emphasis added)

Scope in General. 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 amount in controversy, the importance of the issues at stake in the action, 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.

C.  More Clearly Defined Consequences for Failure to Maintain ESI.   The final category of recommended changes are those designed to address preservation of electronically stored information, or "ESI."  Whereas the old rule 37(e) merely cautioned against imposing sanctions for a good faith failure to properly preserve discoverable ESI, the new Rule 37(e)(1) provides courts with a menu of remedies to address failures to preserve ESI that "should have" been maintained, including "measures no greater than necessary to cure" the loss of ESI or resulting prejudice. 

If the court determines that a party acted with "intent to deprive," the court may impose sanctions including instructing the jury that it may or must presume that the lost ESI would have been unfavorable to the party who destroyed it, dismissal of the action, or entry of default judgment.  Rule 37(e) also includes a list of four factors for courts to consider when crafting an appropriate remedy.  The inclusion of these guideposts is intended to harmonize the approaches to ESI loss and destruction developed in the various federal circuits.  These changes will amend Rule 37(e) as follows:

Current Rule 37(e)

Failure to Provide Electronically Stored Information.  Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Proposed Rule 37(e) (emphasis supplied)

Failure to Preserve Electronically Stored Information.  If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may:

(1) Order measures no greater than necessary to cure the loss of information, including permitting additional  discovery; requiring the party to produce information that would otherwise not be reasonably accessible; and ordering the party to pay the reasonable expenses caused by the loss, including attorney's fees.

(2) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice.

(3) Only upon a finding that the party acted with the intent to deprive another party of the information's use in the litigation:

(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.

(4) In applying Rule 37(e), the court should consider all  relevant factors, including:

(A) the extent to which the party was on notice that  litigation was likely and that the information would be relevant;
(B) the reasonableness of the party's efforts to  preserve the information;
(C) the proportionality of the preservation efforts to  any anticipated or ongoing litigation; and
(D) whether, after commencement of the action, the  party timely sought the court's guidance on any unresolved disputes about preserving discoverable  information.

Odds and Ends.  Among the issues left unresolved is who bears the burden of showing that the discovery sought is proportional.  In comments submitted to the Advisory Committee regarding the new Rule 26(b)(1), noted e-Discovery authority Hon. Shira Scheindlin (S.D.N.Y.) observed that the new concept of proportionality "invites producing parties to withhold information based on a unilateral determination that the production of certain requested information is not proportional....  That will mean the requesting party must make a
motion, at considerable expense."  (See April 10-11, 2014 Report of Advisory Civil Rules at 206.)  Although the Advisory Committee states that the new Rule 26(b)(1) is not intended to place the burden of proving proportionality on the party seeking discovery (id. at 84),  it remains to be seen whether the change will precipitate boilerplate refusals to produce information on the ground that it is not proportional. 

The recommended changes are now in the hands of the Federal Judicial Conference Committee on Rules of Practice and Procedure, which meets in October 2014 to evaluate the proposals and whether to pass them along to the U.S. Supreme Court, which has final authority to promulgate the FRCP under the Rules Enabling Act of 1934.

Louisville Bar Association's Bar Briefs, September 2014

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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