United States: Courts Are Starting To Apply And Interpret FRCP Amendments On e-Discovery

The time for Congress to act on the proposed amendments to the Federal Rules of Civil Procedure relating to e-discovery has come and gone, and those amendments are now in effect as of December 1, 2015.

Prior to the effective date, a litany of questions were raised about how Courts would begin to interpret the amendments.  Courts are now applying the new rules, and in Carr v. State Farm Mutual Auto. Ins. Co., No. 3:15-cv-1026-M, 2015 WL 9010920 (N.D. Tex., Dec. 7, 2015), Magistrate Judge David L. Horan addressed two of those questions.

The first issue relates to whether (and to what extent) the amendments apply to cases filed before the December 1st effective date.  In Carr, the action was filed in April 2015, and the court entered a scheduling order in July, which called for a discovery deadline of December 18th and a trial date in April 2016.  The defendant filed a motion on November 14, 2015, which among other things, sought to strike plaintiff's objections to the pertinent discovery requests and to compel the production of documents and ESI.

After citing the applicable Rules as they existed before December 1st, the court also cited the amendments, noting that they "govern in all proceedings in civil cases thereafter commenced and, insofar as just in practicable, in all proceedings then pending."  See also F.R.C.P. 86.  Although as of December 1st the pleadings in Carr were presumably closed, the relevant document requests and responses had already been served, a discovery deadline was looming and a trial date was only five months away, the court nevertheless found "that applying the standards of Rule 26(b)(1), as amended, to [the defendant's] motion to compel is both just and practicable."  Although the Court did not explain the basis for its conclusion, perhaps it found the application of the amendments to be "just and practicable" because the change in rules ultimately did not seem to have a significant effect on the outcome.

The court's second – and more substantive – interpretation of the amendments relates to the newly added language in Rule 26(b)(1) relating to proportionality.  By way of background, the earlier version of this Rule was often used by some litigants to broadly define the scope of discovery as including information that "appears reasonably calculated to lead to the discovery of admissible evidence."  With that language now eliminated, the new Rule 26(b)(1) provides that the parties may obtain discovery "that is relevant to any party's claim or defense and proportional to the needs of the case," while then listing the various factors relevant to a determination of proportionality.  Because proportionality is now squarely and specifically referenced in the Rules in the context of defining the scope of discovery, a question is presented as to whether these amendments shifted the burden of proving (or disproving) proportionality, from the party resisting discovery (who traditionally bore the burden) to the party seeking the discovery.  In other words, do the amendments now require that the moving party first demonstrate that the information sought in discovery is relevant and proportional to the needs of the case?

The court in Carr answered that question in the negative.  First, the court noted that although the specific language regarding proportionality has only recently been added to the rules, the standards for proportionality have been around for quite some time (in the Fifth Circuit, at least since the 1990 case of McLeod, Alexander, Powel & Apffel P.C. v. Quarles, 894 F.2d 1482).  Second, the court relied heavily on the Committee Notes to the amendments, which provide that "restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.  Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional."  As a result, the court in Carr held that the amendments to Rule 26 "do not alter the basic allocation of the burden on the party resisting discovery to... specifically object and show that the requested discovery does not fall within Rule 26(b)(1)'s scope of proper discovery."

The court concluded that the plaintiff failed to meet its burden of proving that the requested discovery was not proportionate to the needs of the case.  Noting that the plaintiff didn't respond to the motion to compel or argue in support of his objections, the court held those objections were waived and that the documents sought by the defendant were discoverable and proportional to the needs of the case.

Since the plaintiff in Carr filed no response to the defendant's motion to compel, it will be interesting to see if other courts will apply and interpret these amendments differently, in cases where differing interpretations of the new Rules are more hotly contested between the parties.  The "E-Discovery Stage" will certainly be monitoring and commenting on these and other interpretations of the new Rules over the next several months.

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