By David Donovan
The Daily Record Newswire
RICHMOND, VA — Discovery, the all-important quest for information on which litigation depends, used to involve digging through warehouses full of paper documents, piled sky-high in cardboard boxes. Today, of course, electronic storage keeps an exponentially larger number of documents much closer to hand.
As the nature of discovery itself has changed, the law that governs it is changing, too. On Dec. 1, several major changes to the Federal Rules of Civil Procedure took effect, ones that will potentially have significant reverberations for litigators.
Among the several changes to the rules, a few in particular stand out for their salience. Rule 26 of the federal rules had long set out a liberal standard for discovery, allowing litigants to obtain even inadmissible information, so long as it appeared “reasonably calculated to lead to the discovery of admissible evidence.”
That familiar language has been deleted from the new rules, however.
Under the revised rules, information is discoverable if it’s relevant to any claim or defense and is “proportional” to the needs of the case, and the factors that determine proportionality, while not new, are given greater emphasis.
These factors include 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.
Jill Griset, an attorney with McGuireWoods in Charlotte, co-directs the firm’s discovery counsel services group and has closely studied the rule changes. Griset said she thinks that a big impetus driving the changes is a desire to try to limit the voluminous discovery that’s occurring in some large cases.
“In taking that language out, that’s one of the most significant changes in a long time, and that’s going to hopefully change the way judges think about the scope of relevance,” Griset said. “It can’t just be something that might possibly lead to something that might be relevant to a claim or defense. It has to actually be relevant to a claim or defense.”
But Josh Van Kampen, an employment law attorney also in Charlotte, said that the changes to the rules substantially complicate the jobs of plaintiffs’ attorneys. Van Kampen said he was particularly concerned about the implications of using the amount in controversy as a factor to determine to scope of discovery.
“Let’s say we’re representing a low-wage earner at McDonald’s in one case, and we’re representing the former CEO of Bank of America in another case,” Van Kampen said. “I could totally conceive of the CEO litigation plaintiff being granted broader discovery rights than the McDonald’s worker who may have suffered exactly the same sort of discrimination, merely because that McDonald’s worker is a low-wage worker. To me, that’s a miscarriage of justice.”
It remains to be seen just how significant the impact of the changes will be. Justin Kahn, an attorney in Charleston, said he wasn’t sure that proportionality was that major of a change because most federal judges already looked at the facts of the case when deciding discovery disputes and still had to interpret what was “reasonably calculated” to lead to lead to admissible evidence. He also noted that the changes apply both ways.
“Most people think of this rule change as affecting the scope of discovery for plaintiffs, but it applies to defendants as well,” Kahn said. “They have to face the same kind of issues that plaintiffs face, explaining to the court why the discovery sought is proportional to the case in terms of costs, time, and effort.”
The new rules also include several changes that appear aimed at moving cases along in a timely fashion. The revised Rule 4 reduces the time to serve a summons and complaint from 120 to 90 days, while Rule 16 reduces the time for a court to issue discovery orders by 30 days. Discovery can also begin sooner—parties can now request production of documents 21 days after a lawsuit has been filed, whereas previously they had to wait until after a pretrial conference.
Kahn said he thinks it will be interesting to see how involved judges will be in the resolution of discovery disputes under the new revised Rule 16. Under the changes, a scheduling order may direct that a party must request a conference with the court before filing a motion for any order relating to discovery.
“When used properly, these informal conferences with the judges should help the parties resolve disputes earlier without unnecessarily tying up the court’s time with hearings or unnecessarily expending client funds to prepare for these hearings,” Kahn said. “The rules are encouraging lawyers to discuss their issues before involving the court, in an attempt to promote civility between counsel.”
Griset said she was skeptical about whether the changes would actually help speed up cases, although she was hopeful that the amendments would reduce the costs of litigation in several respects. She especially noted a change to Rule 37, which clarifies when sanctions should be issued as a result of the loss of electronic documents.
The new rules require a showing that one party intended to deprive the other of discoverable documents in order for sanctions to be issued—before, mere loss of such documents could be enough. Griset said that uniform standards making clear that companies only need to take reasonable steps to preserve documents will help save litigants money.
“Without uniform standards, lots of big companies have been over-preserving and out of an abundance of caution trying to cease deleting, and that has been extremely expensive,” Griset said. “I think having clear sanctions rules will save companies money because now they won’t panic and over-preserve.”
Van Kampen was particularly skeptical about whether the changes would have the desired impact, though.
“The ironic thing is these rules were made with the goal of essentially securing a speedy and inexpensive determination of every action and proceeding,” Van Kampen said. “I think what’s actually going to happen is we’re going to see substantially more discovery litigation … I think we’re going to have a lot battles over this proportionality requirement.”
Another important change, to Rule 34, requires that any objection to the production of documents be made with more specificity. Boilerplate objections that a request is overly broad and unduly burdensome will no longer be allowed—attorneys must specify the grounds for objecting to discovery and say whether any responsive materials are being withheld on the basis of those objections.
Van Kampen said that was one of the few positive changes in the rules from the plaintiffs’ standpoint.
“We were kind of in the dark before about what was being withheld or not withheld, which put us at a considerable disadvantage,” Van Kampen said.
Kahn agreed that having that extra information would be helpful for litigants.
“I think it’s going to appropriately force attorneys to be more candid with opposing counsel about what they have, with the ultimate goal of helping both sides determine whether the case can and should be resolved,” Kahn said. “If you know that the other side has, you can help your client make a more informed decision.”
Griset, however, said that she saw several potential problems with the change. If a broad request for electronic discovery is asserted, such as for all of a company’s emails related to a particular topic, a defendant won’t have all those emails available when answering those questions, and so may struggle to answer them.
“I think requiring more specificity in objections is problematic with e-discovery because of the volume of it and you can’t specify everything that you’re not going to produce,” Griset said. “I think the intent is good in that they want more transparency between the parties, but I think read literally, it is difficult to have a lot of specificity when you haven’t seen all the documents yet, so I think that more specificity makes it more difficult for defendants that are responding to very broad discovery requests.”
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