(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.