Hon. Xavier Rodriguez and Hon. Rebecca Simmons 2016-09-26 23:49:06
Examining recent amendments to the Federal Rules of Civil Procedure. Last year, the U.S. Supreme Court approved significant amendments to the Federal Rules of Civil Procedure that affected Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84. The scope and purpose of these changes, which became effective December 1, 2015, require that the rules be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding,”1 language that was based on recommendations from the Committee on Rules of Practice and Procedure to the Judicial Conference of the United States. A more recent amendment to Rule 6, which takes effect December 1, 2016, removes the additional three-day response period that had been allowed for electronic service. For litigators, the amendments altering the scope, timing, and responses to discovery requests—as well as those addressing preservation—are the most critical. Scope and Timing of Discovery Amended Rule 26(b)(1) changes the scope of discovery, which previously permitted discovery of any non-privileged matter that was relevant to a party’s claim or defense. Under the former rule, relevant evidence was not limited to material admissible at trial, but included discovery “reasonably calculated to lead to the discovery of admissible evidence.”2 The amended version of Rule 26(b)(1) deletes the foregoing provision relating to the discovery of information reasonably calculated to lead to the discovery of evidence and imports proportionality as a standard for limiting the scope of discovery.3 Nonprivileged matter must be relevant to any party’s claim or defense, but it also must be proportional to the needs of the case.4 In determining proportionality, factors to consider include: (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties’ relative access to relevant information, (4) the parties’ resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.5 These considerations have been imported from Rule 26(b)(2)(C), which deals with discovery protective orders.6 As part of Rule 26(b)(1), these considerations now define the scope of discovery and must be considered when making discovery requests, responses, and objections. In contrast to the scope of discovery under the amended Federal Rules, the Texas Rules of Civil Procedure permit discovery of “any matter that is not privileged and is relevant 7 to the subject matter of the pending action.” The phrase “relevant to the subject matter” is to be broadly construed.8 It is no ground for objection “that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”9 Unlike the proportionality limits to the scope of discovery under the federal rules, a request “is not overbroad merely because [it] may call for some information of doubtful relevance” as long as it is “reasonably tailored to include only matters relevant to the case.”10 Amended Federal Rule 26(d) permits early Rule 34 requests.11 Under the former rule, a party could not seek discovery until after the Rule 26(f) conference.12 A party may now serve a request for production 22 days after service of the summons and complaint.13 The request, however, is considered to have been served at the first Rule 26(f) conference.14 Thus, the time to respond would be 30 days from the conference. Responses to Discover y Requests Rule 34 has been amended to avoid the gamesmanship of boilerplate objections and interminable rolling productions.15 Amended Rule 34(b)(2)(B) requires that objections be made with specificity—including the reasons for the objections,16 and amended Rule 34(b)(2)(C) provides that an objection must include whether any responsive materials are being withheld on the basis of that objection.17 Thus, the uncertainty of whether documents were actually withheld by virtue of an objection may be avoided. The new requirement may be met by conducting a limited search for responsive and relevant documents. Finally, the amended version of Rule 34(b)(2)(B) requires that any production of documents in response to a request for inspection be completed no later than the time for inspection specified in the request or another reasonable time identified in the response.18 This is an attempt to avoid the common practice of responding that documents will be produced but providing no date for the production. Under the amended rule, if it is necessary to produce documents in stages, the response should specify the beginning and end dates of the production.19 Failure to Preserve Electronically Stored Information Former Rule 37 was originally viewed as a safe harbor provision allowing a party to avoid sanctions if electronically stored information was lost due to “routine, good-faith operation of an electronic information system,” but it was too vague and created a confusing patchwork of spoliation decisions.20 The federal circuits split on the severity of the sanctions available under former Rule 37(e)(1).21 The revision settles the circuit split. Amended Rule 37(e)(1) describes the circumstances under which the court may sanction for lost electronically stored information and the level of remedial measures permitted.22 Before a court can grant relief, it has to find that the electronically stored information should have been preserved, that the party failed to take reasonable steps to preserve it, and that the missing data cannot be restored or replaced through additional discovery.23 Upon the additional finding of prejudice, the court can order relief proportional to the action.24 The most serious sanctions—an adverse inference, dismissal of the action, or default judgment—are permitted under Rule 37(e) only when a party acts with the intent to deprive the other party of using the electronically stored information in the litigation.25 Prejudice is inferred.26 The advisory committee’s lengthy and detailed commentary to Rule 37(e) notes that the rule does not address the duty to preserve as the duty and scope of preservation remains in the common law.27 The commentary also elaborates on the threshold requirement that the electronically stored information must be lost due to the failure to take reasonable steps to preserve it, noting that perfection is not required.28 The courts that have applied the amended federal rules have mostly found that retroactive application is appropriate.29 Texas Spoliation ￼Amended Rule 37(e) provides a contrast to the framework set forth in Brookshire Brothers, Ltd. v. Aldridge.30 Although the elements of and the trigger for duty remain in the common law, there is no requirement for a showing that electronically stored information cannot be replaced or restored through additional discovery before sanctions are available in state court. But those facts would be considered under Brookshire when the judge addresses whether prejudice resulted from the spoliation.31 Proportionality of remedies is required under both the federal and state court spoliation analyses. The biggest difference in the jurisdictions may be the admission of evidence of spoliation. According to the advisory committee commentary to Rule 37(e), the judge may consider admitting evidence of the spoliation to the jury even if a spoliation inference is not provided, and evidence of spoliation would be admissible to provide context in situations where an adverse inference instruction is given. In Brookshire, the Texas Supreme Court severely restricts the admission of spoliation evidence to when it is necessary for the merits of the action.32 While significant battles over what is reasonable preservation will arise under Rule 37(e), Texas state courts will likely struggle with uncertainty over the admission of spoliation evidence. The Texas Supreme Court Rules Advisory Committee is considering a new Texas Rule of Civil Procedure 215.7 to address spoliation issues, but this is a work in progress. NOTES 1) Comm. on Rules of Practice and Procedure, Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure, Agenda E-19 (September 2014). 2) Fed. R. Civ. P. 26(b)(1) (amended December 1, 2015). 3) Fed. R. Civ. P. 26(b)(1). 4) Id. 5) Id. 6) Fed. R. Civ. P. 26(b)(2)(C). 7) Tex. R. Civ. P. 192.3(a). 8) In re National Lloyds Ins. Co., 449 S.W.3d 486 (Tex. 2014) (citing Ford Motor Co. v. Castillo, 279 S.W.3d 656, 664 (Tex. 2009)). 9) Tex. R. Civ. P. 192.3(a). 10) In re National Lloyds Ins. Co., 449 S.W.3d at 488 (citing Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995)). 11) Fed. R. Civ. P. 26(d). 12) Fed. R. Civ. P. 26(d) (amended December 1, 2015). 13) Fed. R. Civ. P. 26(d)(2). 14) Fed. R. Civ. P. 26(d)(2)(b). 15) Fed. R. Civ. P. 34. 16) Fed. R. Civ. P. 34(b)(2)(B). 17) Fed. R. Civ. P. 34(b)(2)(C). 18) Fed. R. Civ. P. 34(b)(2)(B). 19) Comm. on Rules of Practice and Procedure, Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure, Agenda E-19 (September 2014). 20) Fed. R. Civ. P. 37 (amended December 1, 2015). 21) See Hawley v. Mphasis Corp., 302 F.R.D. 37, 47 (S.D.N.Y. 2014) (discussing the split). 22) Fed. R. Civ. P. 37(e)(1). 23) Id. 24) Id. 25) Fed. R. Civ. P. 37. 26) Comm. on Rules of Practice and Procedure, Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure, Agenda E-19 (September 2014). 27) Id. 28) Id. 29) See, e.g., Brown v. Dobler, Civ. Ac. No. 1:15-CV-00132-CWD, 2015 WL 9581414, at 2 (D. Idaho Dec. 29, 2015) (citing the amended rules in ruling on a motion filed prior to the rules’ effective date); Meeker v. Life Care Centers of Am., Inc., No.14-CV-02101-WYD-NYW, 2015 WL 7882695, at 5 (D. Colo. Dec. 4, 2015) (same); Granados v. Traffic Bar & Rest., Inc., No. 13 Civ. 0500 (TPG) (JCF), 2015 WL 9582430, at 5 (S.D.N.Y. Dec. 30, 2015) (noting amended Rule 37 would apply to spoliation of any ESI); but see Fowler v. City of New York, No. 13-CV-2372 (KAM) (RML), 2015 WL 9462097, at 3 (E.D.N.Y. Dec. 23, 2015) (declining to apply shorter 90-day time period for service of complaint); Stinson v. City of New York, 10-Civ.-4228 (RWS), 2016 WL 54684, at 5 n.5 (S.D.N.Y. Jan. 2, 2016) (refusing to apply rule because both hard copy and ESI were at issue and the motion was submitted before the rule was effective); Best Payphones, Inc. v. City of New York, No. 1-CV-3924 (JG) (VMS), 2016 WL 792396, at 3 n.2 (E.D.N.Y. Feb. 26, 2016) (applying Rule 37(e) to sanctions motion). 30) 438 S.W.3d 9 (Tex. 2014). 31) Id. at 22. 32) Id. XAVIER RODRIGUEZ is a U.S. district judge sitting in San Antonio. REBECCA SIMMONS is associate general counsel, litigation for medical device manufacturer Acelity. She is a former trial and appellate judge and continues to sit by assignment. A member of the council for the Litigation Section of the State Bar of Texas, Simmons is also chair of the Judicial Committee on Information Technology that advises the Texas Supreme Court on e-filing and other technology initiatives. She is a frequent speaker on technology and preservation issues.
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