(1) Limitations On Discovery
Rule 26(b)(1), which defines the scope of discovery,
has been changed to clarify that discovery is limited to information that “is
relevant to any party’s claim or defense and proportional to the needs of the
case” (amended text in italics). Although safeguards similar to “proportionality”,
e.g., burden, cumulativeness, and expense – have been traditionally available by
court order under Rule 26(b)(2), “proportionality” now defines the scope of
discovery itself. Also, a court may allocate the expenses of discovery. The amendments also delete the oft-cited language that
discovery that is allowed if “reasonably calculated to lead to the discovery of
admissible evidence.”
One can only assume that these change the scope of
allowable discovery
These changes should provide a signal to courts that a
party is no longer entitled to burdensome disproportionate discovery simply by
showing relevance or arguing that the information was “reasonably calculated”
to lead to admissible evidence. From now on, proportionality will also be part
of the vernacular.
(2) Specificity in Responses to Document
Requests
Responding to discovery must now state objections to document
requests with specificity and identify whether documents have been withheld
based on the objections. A party must now disclose when its production will be
complete, if that differs from the time specified in a document request.
(3) Preservation of ESI
Several amendments deal with the preservation of
electronically stored information (“ESI”). Rule 37(e) establishes a uniform,
national standard for sanctions for failure to preserve ESI. The rule requires
that a party take “reasonable steps” to preserve information once litigation is
anticipated, and allows sanctions to cure any prejudice resulting from non-compliance.
Severe sanctions – dismissal, default judgment, and even adverse presumptions in
jury instructions – may only be ordered if the court finds that the spoliation
was intentional.
(4) Acceleration of Early Case Deadlines
The new amendments also shorten two deadlines: service
of the complaint and has 90 days – rather than 120 – to serve a complaint. The
amendments similarly shorten by 30 days the time for issuance of a scheduling
order. These revisions will likely accelerate the Rule 26(f) conference and the
commencement of fact discovery.