• Six Months Later:  A Guide to the 2015 E-Discovery Amendments to the Federal Rules of Civil Procedure
  • July 29, 2016 | Authors: David A. Kushner; Joseph P. Moriarty
  • Law Firm: Willcox & Savage, P.C. - Norfolk Office
  • It has been six months since much-touted amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. The amendments to the Federal Rules embody a desire to reduce the costs of litigation—especially the expense of omnipresent and expanding e-discovery—and to promote the more speedy resolution of civil cases. The following amendments are particularly notable to electronic discovery:
    • Early Case Management- Amended Rules 4, 16 and 26 quicken the pace of litigation by shortening the period of time in which a plaintiff may serve a defendant, requiring Rule 16 scheduling conferences to occur earlier, and allowing a party to propound requests for production prior to the Rule 26(f) conference.
      • Now, under Rule 4(m), the plaintiff must - absent a showing of good cause or in limited circumstances - obtain service on a defendant within 90 days after the complaint is filed.
      • Under amended Rule 16, a court must issue a Rule 16(b) scheduling order, unless the judge finds good cause for delay, within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.
      • The amendments to Rule 26 permit a party to send requests for production prior to the Rule 26(f) conference, although a party served need not respond until twenty-one days after the Rule 26(f) conference.
    • Scope of Discovery and Proportionality - Amended Rule 26 refocuses the emphasis on proportionality with the goal of limiting the scope of discovery request to the needs of the specific case. Jason Ohana’s article in this newsletter discusses this amendment in more detail, and provides some examples of recent cases interpreting the new rules on proportionality. 
    • Specificity in Objections to Requests for Production - Amended Rule 34 alters how parties should object and respond to requests for production of electronic discovery. Jonathan Tan’s article in this newsletter discusses this amendment in more detail, and likewise provides examples of recent cases interpreting the new rules. 
    • Preservation and Sanctions - Amended Rule 37(e) creates a new, uniform ESI-specific sanctions regime. In our previous newsletter, we explained the then anticipated, now applicable standard for determining sanctions of the loss of ESI. Under the amended Federal Rules, before a court may impose a sanction under Rule 37(e), the party seeking sanctions must make a threefold showing. It must show that the ESI: (1) “should have been preserved in the anticipation or conduct of litigation;" (2) was “lost because a party failed to take reasonable steps to preserve it;” and (3) “cannot be restored or replaced through additional discovery.” If all three of the of the above criteria are met, Rule 37(e) permits a court to impose sanctions along a two-level, graduated scale reflecting the culpability of the spoliator: (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 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 default judgment. At the first-level, the amended Rule 37(e) thus requires a showing of prejudice before a court can impose a sanction and limits the sanction in such a case to a measure no greater than necessary to cure the prejudice. The second-level permits a court to impose the most severe sanctions, but requires a showing of intentional spoliation.
    These significant amendments to the Federal Rules are already changing discovery practices in federal courts across the country, and the amendments to the Federal Rules appear promising in terms of reducing the costs of e-discovery and preserving ESI.

    For example, Chief U.S. District Judge Glen E. Conrad of the Western District of Virginia, in ruling on a motion to compel, noted the court “will put a greater emphasis on the need to achieve proportionality, in determining whether to grant the motion to compel,” Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 n. 2 (W.D. Va. 2016). Similarly, in Henry v. Morgan’s Hotel Group, Inc., No. 15-cv-1789. 2-16 WL 303114 (S.D.N.Y. Jan. 25, 2016), a court in the Southern District of New York granted a motion to quash subpoenas issued to third parties and noted the newly amended Rules limit discovery to that which is relevant and proportional to the needs of the case. Additionally, in Noble Roman’s Inc. v. Hattenhauer Distrib., No. 1-14-cv-01734, 2016 WL 1162553 (S.D. Ind. Mar. 24, 2016), the court entered a protective order and prohibited discovery noting the assertion of “relevancy” was “not good enough” as the discovery requests failed the proportionality test under amended Rule 26(b).

    Moving forward, we expect federal courts to grapple with applying the amended Federal Rules to discovery disputes over relevancy, proportionality and sanctions. The ultimate impact the amended Federal Rules has on reducing the costs of litigation will largely depend on how attorneys and courts implement the Rules over the coming years. It is important to keep in mind that cases decided before the 2015 amendments may not provide the best guidance for preservation obligations and e-discovery. Once litigation is anticipated, businesses should work with their e-discovery counsel to make reasonable decisions on preservation and litigation strategies.