New Federal Rules Will Impact E-Discovery
The recent amendments to the Federal Rules of Civil Procedure, which became effective December 1, 2015, are aimed at accelerating discovery and focusing on relevancy and proportionality. Here is an overview of the key changes that will impact the timing and scope of discovery.
First, the amended Rule 4(m) shortens the deadline to serve a defendant with the summons and complaint from 120 to 90 days. Similarly, the amended Rule 16(b)(2) requires courts to issue scheduling orders within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.
Second, the amended Rule 26(d)(2) allows parties to serve discovery sooner – 21 days after the summons and complaint are served. However, under Rule 34(b)(2)(A), the deadline for responding to early Rule 34 document requests is 30 days after the parties have their Rule 26(f) conference.
Third, and most significant, the amended Rule 26 narrows relevancy and specifically incorporates proportionality. The amended Rule 26(b)(1) narrows discovery to “any nonprivileged matter that is relevant to any party’s claim or defense.” Notably, the new rules eliminate the provision that allowed parties to discover information if it “appears reasonably calculated to lead to the discovery of admissible evidence.”
Discovery must be also “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). To determine whether the discovery is “proportional to the needs of the case” the new rules provide several factors to be considered: (1) the importance of the issues; (2) the amount in controversy; (3) the parties’ relative access to relevant information; (4) the parties’ resources; (5) the importance of discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.
Fourth, the amended Rule 37(e) highlights the importance of taking reasonable steps when it comes to preservation and the avoidance of sanctions. Under Rule 37(e), courts may only impose sanctions on a party for failure to preserve ESI if: (1) prejudice results; or (2) the party acted with intent to deprive another party of information. To ensure that a party qualifies for this safe harbor, companies must take “reasonable steps” to preserve ESI. What constitutes “reasonable steps” likely will vary from court to court. That said, reasonable steps typically include: (1) the issuance of a written legal hold notice; (2) verifying that the legal hold is being followed; (3) documenting the preservation and collection efforts; (4) cooperating and being transparent with opposing counsel when discussing e-discovery related issues.
To help in reducing the burden and cost of discovery, litigants need to understand their client’s document retention policies and relevant data sources, implement a reasonable and effective litigation hold, identify the key custodians who are relevant to the claims or defenses in the case and consult with outside counsel to ensure that the preservation and collection is defensible and proportional to the needs of the case.