2015 Civil Rules Amendments

I. History of Rule 26 Amendments

“Restoring proportionality as an express component of the scope of discovery warrants repetition of parts of the 1983 and 1993 Committee Notes that must not be lost from sight.” – 2015 Committee Note

“The objective is to guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry.” The Committee’s intent was “to encourage judges to be more aggressive in identifying and discouraging discovery overuse.” 1983

The Committee added two factors: (1) whether “the burden or expense of the proposed discovery outweighs its likely benefit,” and (2) “the importance of the proposed discovery in resolving the issues.” These were “intended to provide the court with broader discretion to impose additional restrictions on the scope and extent of discovery....” 1993

The Committee added to Rule 26(b)(1) a statement that “[a]ll discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii) [now Rule 26(b)(2)(C)].” The accompanying Note explained that courts were not using the proportionality limitations as originally intended, and that “[t]his otherwise redundant cross-reference has been added to emphasize the need for active judicial use of subdivision (b)(2) to control excessive discovery.” 2000

2010

The Problem Explosion in volume of electronically stored information. Broad / ill- defined duty to preserve Broad discovery / Producer pays Excessive and unnecessary discovery and over preservation of data.

Preserved at Microsoft of Legal Issues Avg. # pages per GB of Microsoft data: 43,753 Unique custodians on hold: FY10: 5732 FY11: 6904 FY12: 7629 FY13: 8881

Over Preservation Case Study : Microsoft – 2013 Average Microsoft Case (Custodians/Volume/Pages) Preserved: 45 Custodians GB - 59,285,000 pp Collected & Processed: 8 Custodians GB -- 10,544,000 pp Reviewed: 8 GB ,000 pp Produced: 2 GB – 87,500 pp Used:

E-Discovery Sanctions on the Rise

“The previous amendments have not had their desired effect.” “[T]hree previous Civil Rules Committees in three different decades have reached the same conclusion as the current Committee – that proportionality is an important and necessary feature of civil litigation in federal courts. And yet one of the primary conclusions of comments and surveys at the 2010 Duke Conference was that proportionality is still lacking in too many cases.” The Committee’s purpose in returning the proportionality factors to Rule 26(b)(1) “is to make them an explicit component of the scope of discovery, requiring parties and courts alike to consider them when pursuing discovery and resolving discovery disputes.” 2015

II. Proportionality in the Scope of Discovery

Proportionality in the Scope of Discovery – Rule 26(b)(1) Purpose:  “The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Rule 26(b)(1) will permit a party to “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 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.”  Proportionality language was moved from Rule 26(b)(2)(C)

Omitted A.“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” B.“For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” C. “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

1. “The importance of the issues at stake in the action”

2. “The amount in controversy”

3. “The parties’ relative access to relevant information”

4. “The parties’ resources”

5. “The importance of the discovery in resolving the issues”

6. “Whether the burden or expense of the proposed discovery outweighs its likely benefit”

III. Cost Allocation

Cost Allocation – Rule 26(c) (c) Protective Orders (1) In General. * * * The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: * * * (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; * * *

IV. Preservation/ Sanctions

A. Prior Rule Safe harbor for loss resulting from “the routine, good-faith operation of an electronic information system.” Failure to Preserve/Spoilation – Rule 37

Uniform national standard for sanctions Elimination of the Second Circuit’s negligence standard “[F]orecloses reliance on inherent authority” –R37 Committee Note B. Purposes of New Rule

Avoid punishing meaningless loss of ESI Emphasis on avoiding over- preservation Provide de facto safe harbor for “reasonable steps” Does not require perfection Proportionality to be considered Purposes of New Rule (continued)

C. Requirements of the New Rule “If electronically stored information  “that should have been preserved in anticipation of litigation  “is lost because a party failed to take reasonable steps to preserve it  “and it cannot be restored or replaced through additional discovery…”

D. Powers Under the New Rule “the court: (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 the 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 a default judgment.”

Rule 37(e) Flowchart Should have been preserved?1 NO Failure to take reasonable steps?2 YES Measures no greater to cure prejudice6 YES Presume unfavorable, Jury instruction, Dismissal7 YES Intent to deprive?4 YES Information cannot be restored/replaced?3 YES NO Prejudice?5 NO

F. Definitions

1. Breach of Duty

2. Reasonable Steps

3. Prejudice

4. Measures Available

5. Exception

V. Other Rule Amendments

A. Production Requests & Objections – Rules 26(d)(2), 34 & 37 Rule 26(d)(2): Allows any party to deliver Rule 34 requests more than 21 days after that party has been served (even if no Rule 26(f) conference has yet occurred). Rule 34: Time to respond to Rule 34 requests served prior to the Rule 26(f) conference is 30 days after the Rule 26(f) conference. Objections to Rule 34 requests must be stated with specificity, and must state whether any responsive material is being withheld on the basis of that objection. Responses must state whether copies of documents and/or ESI will be produced rather than allowed for inspection, and if they are to be produced, production must occur within the time specified for inspection or another reasonable time to be specified. Rule 37: Now allows sanctions for failure to produce copies of documents or ESI rather than only for failure to allow inspection.

B. Case Management Rules Rule 4: Time for service is reduced from 120 days to 90 days. Rule 16:  Scheduling conference must be in person  Scheduling order Must be issued with 90 days after service rather than 120 May include An order governing preservation of ESI Agreements under FRE 502 An order requiring a conference with the court prior to any discovery motion

Rule 1 says the Rules should help achieve the “just, speedy, and inexpensive determination of every action and proceeding.” The amendment says the rule will be “construed, and administered and employed by the court and the parties to secure” those goals. The amendment emphasizes that “the parties share the responsibility to employ the rules” in that matter. The Note says it is important to discourage “over-use, misuse, and abuse of procedural tools that increase cost and result in delay.” The Note adds that “[t]his amendment does not create a new or independent source of sanctions” and “neither does it abridge the scope of any other of these rules.” C. Cooperation – Rule 1

D. Forms – Rules 4(d) & 84, and Appendix of Forms

2015 Civil Rules Amendments