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))
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))
3. Responses to Rule 34 Requests. No more boilerplate objections or vague pledges.
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.
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.
- 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.
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-).
Share this article: