Several important amendments to the Federal Rules of Procedure (FRCP) took effect on December 1, 2015. The rule changes are likely to impact business litigation, particularly the use of e-discovery, in the coming year.
Limiting the Scope of Discovery
One of the most significant FRCP amendments impacts Rule 26(b)(1). The changes are intended to ensure that discovery is not more expansive than necessary by requiring that all requests be “proportional to the needs of the case.” Under the revised rule:
Parties may obtain discovery regarding any non-privileged 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.
According to the U.S. Federal Judicial Conference's Advisory Committee on Civil Rules, it returned the proportionality factors back to Rule 26(b)(1) in order to "restore 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, responses, or objections."
Under the revised rule, information within the scope of discovery need not be admissible in evidence to be discoverable. However, the amended rule no longer authorizes discovery of material that is merely "reasonably calculated" to lead to admissible evidence.
Failing to Preserve Electronic Documents
The recent amendments to the FRCP also clarify the sanctions for failing to preserve electronic documents. The rule change aims to establish greater uniformity in how federal courts respond to the loss of electronically stored information (ESI), which now plays a more significant role in litigation.
As amended, Rule 37(e)(1) provides that the court must first find that the loss of information has prejudiced another party. It may then order measures “no greater than necessary to cure the prejudice.” The amended e-discovery rule also only authorizes adverse inference instructions [under which the jury can presume that the unavailable documents are unfavorable to that party] upon a finding that the party “acted with the intent to deprive another party of the information’s use in the litigation.”
As noted by the Committee, “The lack of uniformity—some circuits hold that adverse inference jury instructions can be imposed for the negligent loss of ESI and others require a showing of bad faith—has resulted in a tendency to over preserve ESI out of a fear of serious sanctions if actions are viewed in hindsight as negligent.”