A Tale of Two Rules
The first six months after the FRCP amendments produced extensive case law as courts and parties grappled with the application of the new rules. In particular, Rule 26(b)(1) with its emphasis on proportionality and Rule 37(e) with its “reasonable steps” language have impacted the ediscovery environment.
To guide practitioners, Kroll Ontrack has compiled an extensive case law digest containing case summaries and analysis to guide practitioners through the nuances of these new rules. In addition to the downloadable e-book, Kroll Ontrack partnered with Judge Elizabeth Preston Deavers of Ohio and nationally renowned civil procedure expert Tom Allman to present a webinar that explored the most prominent cases and developments.
Rule 26(b)(1): The Age of Proportionality
In the webinar, Judge Deavers discussed the changes to Rule 26(b)(1) and their resulting impact on ediscovery. Most notably, the old and often cited “reasonably calculated” language of this rule has been removed, and the rule was revised to emphasize the need for proportionality. Webinar speaker Tom Allman referenced a new research paper he authored, Proportionality Today, which he made available to webinar attendees.
As the new rules take hold, one theme clearly emerges: There is no substitute for specificity. Parties need to be prepared to explain why their discovery request is both relevant and proportional, while parties that are objecting to discovery need to be able to explain why it is not.
In the background of this is newly amended Rule 1, which encourages cooperation between the parties. Keeping discovery proportional and manageable is no longer solely the responsibility of the courts: parties are now expected to do their part to contain the parameters of discovery and resolve any disputes.
Rule 37(e): Preservation Under the Shadow of Inherent Power
In addition to the Rule 26 discussion, Tom Allman reviewed the amendments to Rule 37(e) in regards to sanctions for ESI spoliation and directed webinar attendees to another piece of his research, Applying Amended Rule 37(e). The new language specifies that “reasonable steps” must be taken to preserve ESI, however the rules do not specify what this constitutes, leaving it to the courts to determine depending on the facts of the case.
Despite the lack of explanation of what constitutes “reasonable steps,” the rule clarifies that a party must still have act with intent or “bad faith” before sanctions will be imposed. Suspicious activity or honest mistakes are not enough to warrant sanctions, in most cases. However, if a party acts irresponsibly to preserve evidence, a court may infer a finding of intent.
In addition, Rule 37(e) has attracted attention because some courts are going beyond the parameters of Rule 37(e) and using their “inherent power” to sanction parties. In these cases, the court reached the conclusion that Rule 37(e) did not provide a suitable remedy for the behavior.
With new opinions emerging on an almost daily basis, the impact of the 2015 FRCP amendments continues to evolve, changing the ediscovery landscape. Download the full webinar here!