I will discuss the most important changes concerning scope of discovery and relevant sanctions.
Rule 26 previously defined the scope of discovery broadly to include any information “reasonably calculated to lead to the discovery of admissible evidence.” That language has been replaced by “proportional to the needs of the case” considering various specified factors. Rule 26(b)(1). In addition, Rule 26(c)(1)(B) authorizes courts to issue cost-shifting orders, determining the “allocation of expenses” for certain discovery. Read more …
Rule 26 previously defined the scope of discovery broadly to include any information “reasonably calculated to lead to the discovery of admissible evidence.” That language has been replaced by “proportional to the needs of the case” considering various specified factors. Rule 26(b)(1). In addition, Rule 26(c)(1)(B) authorizes courts to issue cost-shifting orders, determining the “allocation of expenses” for certain discovery.
Under revised Rule 34, objections to productions must be stated with specificity and must state if materials are being withheld. A response that identifies the limits of a search, for example by date range, qualifies as a statement that materials are being withheld.
Rule 37(e) deals with sanction for spoliation. The revised rule is intended to limit sanctions. It applies when ESI “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.” In that case if a court finds that a party has been prejudiced by the loss of the ESI, a court “may order measures no greater than necessary to cure the prejudice.” Rule 37(e)(1). Where the party acted intentionally to prevent the other party from obtaining ESI a court 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.” Rule 37(e)(2).
UPDATES: For some recent cases on sanctions, see Inc. v. Nxtbigthing, LLC, 2016 U.S. Dist. LEXIS 15831 (N.D. Cal. Feb. 8, 2016), holding that sanctions are proper when a party consciously disregards its obligations to preserve relevant evidence (in particular discarding a device without making sure that the documents contained were actually irretrievable) (discussion here); Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784 (N.D. Tex. Apr. 18, 2016), holding thatintent or bad faith is necessary to impose sanctions for deletion of emails (discussion here); NFL Mgmt. Council v. NFL Players Ass’n., 2016 WL 1619883 (2d Cir. Apr. 25, 2016), holding that a party’s destruction of evidence (cell phone) rightly supported adverse inference by NFL Commissioner acting as arbitrator (discussion here)
For more information, Nathan M. Crystal.
This blog is an extract of my Ethics Watch ” Technology and Ethics (“Technethics”) – 2015 Year in Review“, forthcoming in South Carolina Bar, March issue.