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| EMERGING AREAS OF THE LAW
“New” Federal Rules Litigators Should Be Following BY DIANE KILCOYNE, ESQ., CEDS
The Federal Rules of Civil Procedure (FRCP) underwent several significant changes a few years ago which impact the conduct of litigation in federal courts. Despite the importance of these rule amendments, which went into effect in December of 2015, many attorneys remain unaware of the changes. This article will highlight three significant changes that litigators should know about. FIRST, CHANGES TO RULE 26 highlight the need to be con-
cise with what you ask for in discovery – as the scope of discovery has been clarified to be more narrowly defined. Second, changes to FRCP 34 spell the end of boilerplate discovery objections. Finally, the changes to Rule 37 regarding sanctions for discovery failures have lessened the fear of being sanctioned for losing data in the everyday course of business, and have at least partially stopped the needless over-preservation of data that was rampant in litigation in years past. Litigators who ignore these three significant rule changes risk being sanctioned by the courts. Changes to the Scope of Discovery One of the most fundamental changes to the FRCP is the proportionality component added to definition of what is “discoverable” in litigation. While proportionality was actually always part of Rule 26, listing this factor in the definitions section, the first part of the rule, makes it clear that parties must consider proportionality before making discovery requests. Another significant change to Rule 26 is the removal of the language which read, “Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” This phrase “reasonably calculated” was often incorrectly cited as grounds for seeking discovery of information that was not relevant to the case at hand, as attorneys had confused relevance with admissibility. The Rules Committee has corrected this by simply removing the language. Since December 2015, the scope of discovery is simply this: 1) Scope in General. 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. Informa-
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tion within this scope of discovery need not be admissible in evidence to be discoverable.” Litigators, at least in federal courts, should no longer be citing to old case law or putting forward any argument with the phrase “reasonably calculated to lead to the discovery….” To do so is to risk sanctions. Two recent cases shed some light on how courts are interpreting the rules on proportionality and scope. The first deals with backup tapes being available to locate relevant information. In The Physicians Alliance Corp. v. Wellcare Health Insurance of Arizona, Inc., et al., No. 16-203-SDD-RLB (M.D. La. Feb. 27, 2018,) the defendant had identified certain custodians whose ESI would have been periodically saved to backup tapes, and represented that restoring those backup tapes would cost approximately $332,400. The plaintiff filed a motion to compel production of all data from the backup tapes at defendant’s expense, or for permission to have its expert examine the backup tapes, arguing that the backup tapes contained information both relevant and proportional to the needs of the case. The defendant opposed the motion, arguing that the discovery sought was not proportional to the needs of the case as it was likely to be cumulative of prior productions, and that it was not reasonably accessible, and may not be recoverable at all. Although the defendant argued in pleadings that the information on the backup tapes was likely to be cumulative of prior productions, at oral argument its counsel represented that only 71 percent of the data recovered had been duplicative of other information produced. Therefore, the court found that it should produce the material from the backup tapes. A key takeaway from this case is that specificity is critical when making, and opposing, proportionality arguments; and that unsupported claims that the production will be burdensome or duplicative will not be successful. The second case deals with whether a defendant is entitled to obtain plaintiff’s entire “private” Facebook account, which defendant contended was material and necessary to the defense of the case. In Forman v. Henkin, 30 N.Y.3d 656 (2018), plaintiff alleged she was injured when she fell from defendant’s horse, suffering serious
