Michael S. Powers

Michael S. Powers Associate

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New Discovery Rules Announced, But Do They Really Deliver on Simplicity?

In a move to streamline cases in federal court, amendments are set to go into effect on December 1, 2015 that shorten deadlines, encourage Judges to be more involved in discovery matters, and narrow the scope of discovery.  This new philosophy is captured in a note to the amendment to the very first rule:

Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way …. [D]iscussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure

The amendments also address early case management.  Cases where summons are not served within 90 days will be dismissed, down from 120 days under the current rule.  Rule 16 will see a number of changes also designed to impact early case management.  The Committee notes to amended Rule 16(b)(1) state that the parties should engage in “direct simultaneous communication” and that such communications “may be held in person, by telephone, or by more sophisticated electronic means.”  Further, Rule 16(b)(2) reduces the time to issue a scheduling order to the earlier of 90 days (down from 120 days) after any defendant has been served, or 60 days (down from 90 days) after any defendant has appeared, unless the judge finds good cause for delay.

Rule 16(b)(3) will be amended to permit the court, in the scheduling order, to require a conference with the court before a party may move for a discovery order.  Rule 16(b)(3) will also be amended to allow that the scheduling order itself may require preservation of electronically stored information, and may also set forth any agreements of the parties under Federal Rule of Evidence 502 regarding attorney-client privilege and work product.   Rule 26 will be amended to require the parties’ discovery plan to state the parties’ views and proposals on issues about preservation of electronically stored information and to include the court’s orders under Rule of Evidence 502.

Rule 37(e)(1) will be amended to allow that the most serious sanctions available, specifically an adverse inference against the party claiming loss of the materials or even the ultimate sanction of dismissal of the action or default judgment, are only available where a party acted with the intent to deprive an opponent of the information’s use in the litigation.  This rule only concerns electronically stored information, and only if it should have been preserved in the course of, or in anticipation of, the litigation but the party failed to take all reasonable actions to do so.  This should provide substantial clarity at least to the availability of these most dire of sanctions.

The most significant change to the rules relates to discovery, and what information is discoverable.  New Rule 26(f)(3) removes “reasonably calculated to lead to the discovery of admissible evidence” entirely, and allows discovery that is “proportional to the needs of the case.”  Proportionality can be evaluated by a five factor test.  The five factors to be considered include the importance of the issues at stake in the case, the amount in controversy, the parties’ relative access to information, the importance of the discovery in resolving access to the information, and whether the expense of the proposed discovery outweighs the likely benefit.  Four of the factors currently appear in Rule 26, but they have now been incorporated into the definition of the scope of discovery.  Hopefully, discovery rulings will consider the size of the case involved and the cost involved rather than simply whether the discovery request was reasonably calculated to lead to the discovery of admissible evidence.

The proposed amendments to Rule 34 also impact discovery, and specifically responses to requests for production. First, the new version of Rule 34(b)(2)(B) will require that objections be made with specificity.  Standard blanket objections will theoretically be insufficient.  Of course, it remains to be seen to what degree this will actually impact the sufficiency of an objection.

Next, the new version of Rule 34(b)(2)(C) will require that an objection to a request is accompanied by the party’s withholding of materials due to that objection.  Currently, a party may provide several basis of objection to a request, yet still produce materials subject to that objection, leaving great uncertainty as to what is or is not being produced and under what objection materials are being withheld.

Finally, the new version of Rule 34(b)(2)(B) requires that any production of documents in response to a request for inspection be completed by either the deadline stated in the request or some other reasonable deadline identified in the response to the request.  Under the current version, responses would frequently state that documents would be produced on a rolling basis but without identifying any end date to that process.  The new version of the Rule, and the committee notes to the Rule, provide that even if production is to be accomplished in stages, the completion date should still be identified.

Obviously how these amendments will be interpreted by the courts will be the key going forward for parties.  And these restrictions on the scope of discovery may push parties away from federal court and into other forums unless and until those forums adopt similar, arguably more restrictive views on discovery.  We can all agree, however, that discovery has made cases prohibitively expensive and, in some cases, driven settlements of claims that may not otherwise have had real merit.  Hopefully, these changes will benefit all parties and provide for the more efficient resolution of disputes in federal court.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including all aspects of litigation practice, for nearly sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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