Gregory P. Joseph*

1. Narrower Scope of Discovery. Discovery is confined to matters (i) “relevant to any party’s claim or defense” and (ii) “proportional to the needs of the case.” (Rule 26(b)(1))

• Reasonably-Calculated Language Deleted. The sentence formerly providing that “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence” has been deleted, with the note that it was never intended to define the scope of discovery. (It was originally added in 1946 to solve a specific problem - parties were objecting in depositions to relevant questions on the ground that the answers would not be admissible at trial - but took on a life of its own over the years.)

2. Early Rule 34 Requests. Requests for production or inspection may be served within 21 days of the service of the summons and complaint (i) by any party on the served defendant and (ii) by the served defendant on the plaintiff or any other served party (which could include third-party defendants or additional counterclaim defendants whom the defendant has promptly served). (Rule 26(d)(2)(A))

• These requests are considered served at the time of the Rule 26(f) conference. (Rule 26(d)(2)(B))

3. Responses to Rule 34 Requests. No more boilerplate objections or vague pledges.

• Specific Objections. The response to each item of a Rule 34 request must “state with specificity the grounds for objecting to the request, including the reasons” (Rule 34(b)(2)(B))
  • The Advisory Committee Note elaborates:

An objection may state that a request is overbroad, but if the objection recognizes that some part of the request is appropriate the objection should state the scope that is not overbroad.  Examples would be a statement that the responding party will limit the search to documents or electronically stored information created within a given period of time prior to the events in suit, or to specified sources.  When there is such an objection, the statement of what has been withheld can properly identify as matters withheld anything beyond the scope of the search specified in the objection.

• Specific Deadline for Production. Production must be completed “no later than the time for inspection specified in the request or another reasonable time specified in the response” (Rule 34(b)(2)(B)) Determining “another reasonable time” could be challenging, especially if the Rule 34 request is made early, under Rule 26(d)(2)(A). Amendment of responses is likely to become common.

• Specificity as to Whether Production Is Being Withheld. “An objection must state whether any responsive materials are being withheld on the basis of the objection.” (Rule 34(b)(2)(C)) Until the responding party is familiar with the universe of responding materials, this may be unknowable. Initial responses may have to recite either the responding party’s belief as to whether materials are likely to be withheld or that it is uncertain whether materials will be withheld- and then supplemented in a timely fashion once the fact is determined.
  • The Advisory Committee Note adds:

The producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection.  An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been withheld.

4. Spoliation of Electronically-Stored Information.

• No sanctions may issue against a party for spoliation of ESI unless all 4 of the following criteria are satisfied: (i) the ESI should have been preserved; (ii) it is lost; (iii) the party failed to take reasonable steps to preserve it; and (iv) it cannot be restored or replaced. (Rule 37(e))

• If all four of these criteria are satisfied:

• Plus one more - prejudice - then the court “may order measures no greater than necessary to cure the prejudice.” (Rule 37(e)(1)) These measures cannot include the penalties identified in subdivision (e)(2) (presuming the lost information was unfavorable to the spoliator; an adverse inference instruction; a default judgment, or dismissal).

• Plus a different one - that the spoliator “acted with the intent to deprive another party of the information’s use in the litigation” - then, regardless of prejudice, the court may presume the lost information was unfavorable to the spoliator or issue an adverse inference instruction, a default judgment, or dismissal. (Rule 37(e)(2)) Note: (i) prejudice need not be shown, and (ii) intent may be a jury issue under Fed. R. Evid. 104.

• Rule 37(e) applies only to spoliation of ESI, not tangible evidence. In five Circuits (1st, 2d, 6th, 9th and sometimes D.C.), negligence will continue to suffice for the imposition of severe sanctions for spoliation of tangible evidence.

• Rule 37(e) applies only to “a party,” not third-party spoliators (e.g., subpoena recipients).

BACK* Past President, American College of Trial Lawyers; past Chair, ABA Section of Litigation; past member, Advisory Committee on the Federal Rules of Evidence; President, Supreme Court Historical Society; author, Sanctions:  The Federal Law of Litigation Abuse (5th ed. 2013); Civil RICO: A Definitive Guide (4th ed. 2015); Modern Visual Evidence (Supp. 2015); member, Editorial Board, Moore’s Federal Practice (3d ed. 1995-).