FRCP Amendments: What You Need to Know

On December 1, 2015, a number of amendments to the Federal Rules of Civil Procedure took effect.  The amendments primarily concern discovery.  Below is an overview of the top three things you need to know.

First, the amendments made a couple of changes to Rule 26(b)(1) regarding the scope of discovery.  That revision added language requiring that the discovery sought be proportional to the needs of the case and a determination of whether the burden outweighs its likely benefit.   It is clear from the Committee Notes accompanying the amendment that the proportionality amendment was driven by e-discovery concerns.  The amendment also eliminated the language that allowed for the discovery of information “that may lead to discovery of admissible evidence.”  Rule 26(b)(1).  That deletion does not seem to greatly affect the scope of discovery because the amendment also added language providing that “[i]nformation within the scope of discovery need not be admissible in evidence to be discoverable.”

Second, the amendments added a requirement for more details regarding a party’s responses and objections to production or inspection requests.  Specifically, objections to document production requests now “must state whether any responsive materials are being withheld on the basis of that objection.”  Rule 34(b)(2)(C).  While the extent to which courts will ultimately enforce this rule remains unclear, this amendment likely will require a meaningful change in discovery practices for most firms in responding to discovery requests, and hopefully will help reduce hide-the-ball discovery tactics.

Third, the amendments added language related to document preservation requirements of Rule 37(e) —again likely prompted by changes arising from e-discovery.  This amendment removes the requirement that there be “exceptional circumstances” related to a party’s failure to provide information that is lost before the court may impose sanctions.  New Rule 37(e)(1) provides that, “upon finding prejudice to another party from loss of the information, [the court] may order measures no greater than necessary to cure the prejudice.”  Additionally, Rule 37(e)(2) identifies suggested penalties if the court finds that a party acted “with the intent to deprive another party of the information’s use in the litigation.”  The penalties include a presumption or instruction of an adverse inference, or dismissal of the action.  While this amended rule arguably appears to be harsher than its earlier version, the Committee Notes provide guidance indicating that the “court should be sensitive to the party’s sophistication with regard to litigation in evaluating preservation efforts.”  No matter how strictly the rule is enforced, it confirms the importance of litigation hold notices and the preservation of emails and other documents when future litigation is anticipated.