Everything You Need to Know About The New FRCP Amendments

Columnist Jeff Bennion offers an overview of the most significant changes and what you need to know.

Effective today, the 2015 amendments to the Federal Rules of Civil Procedure are in place. The changes mostly concern discovery. Here is an overview of the most significant changes and what you need to know. I have highlighted the new text in red and the deleted text has a strike through.

Rule 26(b)(1)

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged 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.including 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. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

In essence, they added a section on how discovery needs to be proportional to the needs of the case and the benefit versus burden of obtaining the information and deleted the section about doing discovery to identify custodians and how or where data is stored. That is an integral part of e-discovery. When you have a case against a large manufacturer, it is common to do a deposition of the defendant’s IT person to identify how the data is stored, what the data retention policies are, etc.

Adding the section on proportionality should not be a game changer to anyone. There has always been a rule that the discovery cannot be overly burdensome, which requires a case-by-case analysis that looks at the burden/benefit and the size of the case. In fact, the Committee Notes state that this has been part of the FRCP since 1983. The Notes also mention that the primary cause of this rule is e-discovery. In referring to the Notes to the 1993 amendments that mention “the explosion of information in recent decades,” the 2015 Notes state: “What seemed an explosion in 1993 has been exacerbated by the advent of e-discovery.” Proportionality is almost always an issue in e-discovery. If I see two new names cc’ed on an important email, I might ask for information from those individuals as well. The problem is that expanding the scope to one more corporate employee’s computer might yield another 40,000 records that need to be reviewed and coded and prepared for production with load files and natives and tiffs organized. So small things like adding one more person to the search can have huge financial consequences to the responding party.

Again, referring to how e-discovery is the driving factor in this amendment, the Notes state:

The burden or expense of proposed discovery should be determined in a realistic way. This includes the burden or expense of producing electronically stored information. Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available.

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The way that last sentence is worded, I wonder if that is a suggestion that parties turn to Technology Assisted Review and Predictive Coding, which in the past has been the subject of much debate in the courts.

Regarding the portion that was deleted, the Notes make it clear that that was just deleted because it’s already obvious and so deeply entrenched in standard discovery practice, such that including it in the code would just be “clutter.”

Rule 37(e)

Failure to Provide Preserve Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. If electronically stored information that should have been preserved in the anticipation or conduct 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, 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.

Again, another rule change brought about because of e-discovery. A lot of companies have standard data retention policies – stores only retain security camera footage for a certain amount of time, data backups are only kept for a certain length of time, email storage is limited, etc. It is not uncommon to have policies in place to automatically delete old data. The problems arise when a company’s policy calls for the routine deletion of data that is discoverable. So, if the IT department sets it up so emails are deleted after three years and a company gets sued for false marketing claims over a dangerous drug that has been manufactured over the last four years, and the company does not halt the automatic purging of emails from the time they get served with a summons and the time they get their first request for production, they could be in a lot of trouble.

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This amendment strikes out the part that says the Court should go easy on the party if it’s an honest mistake and replaces it with language suggesting punishments for failing to take reasonable steps to halt the auto deletion, all the way up to dismissing the action or entering a default judgment.

Again, the Committee Notes give us guidance on how the harsher rule should be applied:

Due to the ever-increasing volume of electronically stored information and the multitude of devices that generate such information, perfection in preserving all relevant electronically stored information is often impossible…This rule recognizes that ‘reasonable steps’ to preserve suffice; it does not call for perfection. The court should be sensitive to the party’s sophistication with regard to litigation in evaluating preservation efforts; some litigants, particularly individual litigants, may be less familiar with preservation obligations than others who have considerable experience in litigation.

The key here is where it says to be sensitive to a party’s sophistication regarding preservation. It does not say that the party’s attorneys can be held to a lower standard if they don’t know much about preservation. In fact, that was the scenario in the recent California ethics opinion on e-discovery. The lawyer forgot or didn’t know to tell his client’s IT department to halt the routine purging of old data and got in trouble. The opinion suggests that the attorney’s ignorance in the matter is a failure in his duty of competence to his client, and he should have hired someone to help him understand e-discovery, or fired himself from the case.

So those are the major updates. It’s interesting that we’ve received major updates to the FRCP that reflect some of the results of the e-discovery battles that have been fought since the 2006 amendments. With the fast-paced changes in technology and problems that we face in technology-related legal areas, it’s nice to see updates at least once a decade. For perspective, when the 2006 FRCP amendments came out that initially addressed e-discovery, Windows Vista was only a few weeks old, and Apple released its MacBook Pro with a 17” screen, 2 gb of RAM, and a 160gb hard drive for $2,799. Facebook was a few weeks old, and the idea of storing thousands of photos online was still years away. And that was when lawmakers were concerned that electronic data was exploding. It makes it scary to think about how much more data will be created between now and the next update.


Jeff Bennion is Of Counsel at Estey & Bomberger LLP, a plaintiffs’ law firm specializing in mass torts and catastrophic injuries. Although he serves on the Executive Committee for the State Bar of California’s Law Practice Management and Technology section, the thoughts and opinions in this column are his own and are not made on behalf of the State Bar of California. Follow him on Twitter here or on Facebook here, or contact him by email at jeff@trial.technology.

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