On December 1, 2015, several amendments to the Federal Rules of Civil Procedure took effect. While some changes are rather minor, others are expected to have a significant impact on litigation in federal court. Lawyers have been talking about these amendments for years as they were developed, proposed, revised, and eventually approved, but comparatively little has been said about what the parties to litigation need to know. Three key takeaways are discussed below.

Scope of Discovery

Tension among litigants related to the discovery process (i.e., the exchange of information, hard-copy documents and electronically stored information related to the litigation) is practically a hallmark of litigation. While plaintiffs may seek “everything and the kitchen sink” through the discovery process, defendants often have a more focused view of what is relevant to the case. The amendments to Rule 26 seek to provide clear guidance to courts regarding what is “discoverable” and what is not.

While the amendments to Rule 26 emphasize the point that the burden inherent in responding to discovery requests cannot be disproportionate to the value of the case, that is not the most heralded aspect of the amendments. Instead, the most promising aspect of the revised rule is the language requiring that the information, documents and electronically stored information (“ESI”) requested must be relevant to the claims or defenses in the lawsuit, and not merely related to the subject matter of the case or “reasonably calculated to lead to the discovery of admissible evidence.” While the interpretation and application of this rule in the coming months and years will be telling, defendants are hopeful that this new language will prove helpful in resisting overly broad requests for information, documents and ESI, which too often lead to spiraling litigation expense.

Preservation of Documents & Electronically Stored Information

Litigants have long struggled to determine:

1. when they have an obligation to preserve hard-copy documents and ESI relevant to a dispute;
2. the scope of documents and ESI that must be preserved; and
3. what a court will do if relevant documents and ESI are not preserved properly.

In response to horror stories about the penalties imposed when relevant evidence has not been preserved properly, many litigants have felt pressured to undertake extreme preservation efforts that can prove costly, not to mention disruptive to business operations.

The amendments to Rule 26 discussed above provide some guidance – and possibly some relief – regarding the scope of documents and ESI that needs to be preserved. Helpfully, the amendment to Rule 37 goes one step further to establish a new, uniform standard to be applied when evidence has not been preserved properly.
While the standard previously varied from jurisdiction to jurisdiction, the amended rule makes clear that a federal court may only sanction a party in connection with missing documents or ESI if:

1. the documents or ESI should have been preserved;
2. the documents or ESI were lost because the litigant failed to take reasonable steps to preserve it;
3. the documents or ESI cannot be restored or replaced through additional discovery; and
4. either the opposing party is prejudiced by the absence of the documents or ESI, or the party responsible for the documents or ESI “acted with the intent to deprive another party” of the opportunity to use the information in the litigation.

While this framework leaves much open to interpretation and case-specific analysis, the development of a uniform framework is an important step in providing some predictability to litigants. Armed with a basic understanding of the analysis that applies in the event of lost evidence, litigants and their counsel are much better positioned to make informed and reasonable preservation decisions.

Pace of Litigation

Some of the less-discussed amendments are designed to increase the pace of litigation. Plaintiffs now have 30 fewer days to serve a complaint (Rule 4), and judges now have 30 fewer days to enter a scheduling order (Rule 16), and parties are permitted to begin requesting documents from the opposing party earlier in the case (Rule 26).

All of these changes should lead to a quicker resolution of lawsuits, which is often welcome news to defendants who have previously had to endure unnecessarily protracted litigation that may keep a business in limbo. Spilman will continue to monitor the effects of these amendments and will update friends and clients as necessary.

If you have any questions, please contact our E-Discovery Practice Group.