This is a guest post by Counsel On Call attorney, Tiffany Fox.
In June 2013, a series of proposed amendments to the Federal Rules of Civil Procedure was opened for public comment. Most of the proposed changes affect discovery and the growing use of technology in the preservation, collection and production of ESI.
The changes addressing discovery can be broken into four categories: (1) Improvement of judicial case management, (2) Proportionality of discovery, (3) Advancing cooperation, and (4) Creating a higher standard for sanctions for spoliation.
- Improvement of judicial case management: In the first category, the changes focus primarily on the case management aspects of litigation. There is a clear intent to speed the process through increased cooperation and specific restrictions on certain stages of litigation. Rules 4(m), 16(b) and 26(d) would reduce the time allowed for filings or issuing scheduling orders, and would allow for discovery requests to be issued earlier in the process. By forcing the parties to keep things moving, the idea is that a judge will spend less time cajoling responses and can get cases in and out of court a bit faster.
- Proportionality of discovery: In the second category, proportionality is being added explicitly to Rule 26(b)(1), which limits the scope of discovery. Currently, proportionality is implied by the language used and has been interpreted that way in case law, but as ESI has increased exponentially in recent years, the new, stronger language would give parties less “wiggle room” to request additional discovery. Parties requesting discovery would now have the burden to prove that the requested discovery is proportional to the needs of the case. Additionally, reductions in the number of depositions and interrogatories and time allowed for each (Rules 30, 31, 33, and 36) would ideally create reduced expectations in the minds of practitioners; even though a judge may still adjust the number of depositions according to what is appropriate to a given case, having a smaller presumptive baseline would encourage a smaller total.
- Advancing cooperation: The third category is intended to improve and encourage increased cooperation among opposing parties. Perhaps the most significant change is the inclusion of the language “and the parties” to Rule 1, which currently requires only the judge to take responsibility for the efficiency of the process. The expectation is now placed directly on the attorneys and their clients as well. Additionally, Rule 16(b)(1)(B) would eliminate the language allowing scheduling conferences to be conducted via “telephone, mail, or other means.” If the judge feels the Rule 26(f) report is sufficient, a conference may not need to be held at all. But where one is necessary, it would have to happen by “direct communication,” in the Committee’s language, which means face-to-face, telephone, video conference, etc., but excludes mail or email. The hope is that such direct, in-time communication will prove more effective, and that delaying tactics are less easily employed in such a situation.
- Creating a higher standard for sanctions for spoliation: The fourth and final change affects Rule 37(e), known as the “safe harbor” rule, and has received perhaps the most interest. The rule was originally added in 2006 to provide protection against sanctions for ESI destroyed in the regular course of business (excepting, of course, ESI destroyed after an obligation to preserve arises). The proposed change would strengthen this protection, by requiring the party requesting sanctions to show willfulness or bad faith, and a substantial prejudice to the case. This would cut down on the time spent arguing sanctions motions for spoliation, and once again, keep action on the merits of the case moving forward.
Interestingly, in a footnote Judge Scheindlin has already issued a case condemning the proposed change to Rule 37(e): Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (SAS) (FM), 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013). Her belief is that the changes, by establishing a higher standard for the requesting party, would encourage “sloppy” behavior in ESI management. She argues that by removing the possibility of sanctions for spoliation for anything less than willful behavior or bad faith, or where there is no actual prejudice caused, parties and their attorneys can turn a blind eye to negligent, or even grossly negligent, information management operations. Though she ends the note by acknowledging the proposed rule irrelevant to the case, the length of the footnote and its irrelevance are quite telling of her concern over this proposed change.
The public comment period lasts through February 15, 2014, so it will be interesting to see the reaction to Judge Scheindlin’s critique, as well as to see other suggestions of how these changes might play out in the real world. Whatever the reaction, at least some of these changes are likely to be implemented in the next year, so it’s a good time for discovery practitioners to be paying attention.