Historical ESI Highlights – Part X – Dec. 2015 Amendments to the Federal Rules of Civil Procedure

As described in the initial blog in this series, the “ESI Amendments” to the Federal Rules of Civil Procedure went into effect in December 2006.  And, as Judge Facciola explained “[I]t is startling how small the changes to the 2006 rules really are. Anyone looking for a revolution in civil procedure will have to look elsewhere.”

The Rules were amended in December 2015.  However, unlike 2006, the amendments did not make only small changes.  Chief Justice Roberts explained in the 2015 Year-End Report on the Federal Judiciary that the December 2015 amendments were “the product of five years of intense study, debate, and drafting….” He wrote that: “The [2015] amendments may not look like a big deal at first glance, but they are….”[1]

Justice Roberts explained that the December 2015 rules were designed to  The Chief Justice wrote:

I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics. The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results.

He wrote that “the 2015 civil rules amendments provide a concrete opportunity for actually getting something done.”

The 2015 amendments made many changes.  An ABA article, J. Ben Segarra, 2015 Amendments to the Federal Rules of Civil Procedure (americanbar.org) (Jan. 3, 2017), explains:

In the spring of 2015, the Supreme Court of the United States approved certain amendments to the Federal Rules of Civil Procedure to go into effect December 1, 2015. While the amendments included several small or clerical changes, a total of three alterations stand out as particularly worthy of the wary litigator’s attention.

First, Rule 26(b)(1) contains a new “proportionality test” that has already changed the landscape of discovery disputes. Omitted is the old, familiar statement: “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

Next, the cost allocation regime under Rule 26(c) has changed somewhat. Whereas in the heady days preceding December 1, 2015, the ability to defer the cost of producing discovery to the requesting party was part of the common-law toolbox for judges desirous of controlling the discovery practices of the litigants practicing before them, new Rule 26(c) contains the explicit allowance that a court may for good cause issue an order “specifying the terms, including time and place or the allocation of expenses, for the disclosure or discovery” sought. Id. (emphasis added). As a result of the codification of cost allocations, such deferments are likely to become far more commonplace, limiting fishing expeditions at discovery.

In addition to the emphasis placed on proportionality, and amendments emphasizing the role of Fed.R.Evid. 502, perhaps most significantly, the old “safe harbor” provision of Rule 37 was demoted to an Advisory Committee note and replaced with a fully-revamped sanctions rule, Fed.R.Civ.P. 37(e).

The contours of Rule 37(e) are much too complex for this blog.  Suffice it to say that, as noted in the prior blog on the “Marquee E-Discovery Disaster Cases,”  the Rule 37(e) amendments were designed to dim the marquee lights and cabin the federal spoliation doctrine.

In the report cited above, the Chief Justice wrote:

In the nineteenth century, a change in culture left dueling by the wayside and left us with lessons learned. Joseph Conrad’s novella “The Duel” tells the tale, taken from fact, of two gallant French cavalry officers, D’Hubert and Feraud. Estranged by a trifling slight, they repeatedly duel over a 15-year period. According to newspapers of the era, the real-life antagonists, Dupont and Fournier, would cross swords and draw blood whenever their military service brought them near to one another. Conrad’s characters, like the real ones, relentlessly persist in their personal feud through the rise, fall, reemergence, and ultimate exile of Napoleon, as the world transforms around them. In the end, these soldiers, who should have been comrades in a patriotic cause, spent much of their adult lives focused on a petty squabble that left them with nothing but scars. We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result. [Emphasis added.]

History shows that the modest changes of 2006 were followed by cultural changes in 2015.[2]  For more on cooperation, see Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation.

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[1] For a more detailed discussion, see M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 21, passim.

[2] For additional information, see, e.g., Amendments to Federal Rules of Civil Procedure (supremecourt.gov), Summary of December 2015 Amendments to the Federal Rules of Civil Procedure (orrick.com), The 2015 Amendments to the Federal Rules of Civil Procedure | University of Virginia School of Law.