The December 1, 2015 amendments to the Federal Rules of Civil Procedure were designed to expedite substantive resolution of issues and curtail expansive, disproportionate discovery, with the ultimate goal being to focus courts and litigants on the specific claims and defenses at issue. In September 2015, Jones Day published a White Paper titled "Significant Changes to the Federal Rules of Civil Procedure Expected to Take Effect December 1, 2015: Practical Implications and What Litigators Need to Know," which addressed the proposed amendments and the practical impact each may have on early case management, discovery, and litigation strategy.
This Commentary provides an overview of emerging trends and practical impact from the first nine months of case law interpreting amended Federal Rules 26(b), 34(b), and 37(e).
New Rules or Old? Defining "Just and Practicable"
Because the amended Rules govern in all proceedings in civil cases commenced on or after December 1, 2015, "and, insofar as just and practicable, all proceedings then pending,"1 many litigators have had to consider whether and to what extent the new rules might apply retroactively in their long-running cases. While results thus far have been mixed, the trend in such cases is toward applying the new Rules. While some courts have applied the old Rules,2 most have explicitly determined that it would be "just and practicable" to apply the new Rules in cases pending before December 1,3 even to motions fully briefed but undecided before the effective date.4 Some courts applying the amended Rules have noted that the outcome under the prior version would have been the same.5
Federal Rule of Civil Procedure 26(b)Applying the Proportionality Factors to Discovery Scope and Limits
By relocating existing proportionality factors from elsewhere in the Rules into the definition of the scope of discovery, the amendments to Rule 26(b) (see "Proportionality," White Paper, page 4) reinforce, rather than reinvent, the parties' obligation to consider proportionality in making discovery requests, responses, and objections.6 As expected given their new prominence, those proportionality factors have received more attention than ever from litigants and courts. It is now critical for parties to proactively address those factors in discovery requests, objections, and negotiations to demonstrate reasonableness and avoid frustrating the court.7
Case law emerging in the wake of the amendments reflects courts making a conscious effort to address and balance the Rule 26(b) proportionality factors, in particular when the party contesting discovery provides specific, fact-based reasons for its objections and the information sought is either irrelevant to the issues at hand or is obtainable from another source.8 In at least two cases, courts went a step further and included in their proportionality analysis an additional factor not enumerated in Rule 26: confidentiality concerns.9 In another case, a litigant seeking a letter rogatory to depose a non-party executive in London convinced the court that the benefit of the deposition outweighed the associated burden and expense.10
All this goes to show that specificity is key to a credible proportionality argument. Where parties have made specific, clear, and well-supported objections that are grounded in the proportionality factors, courts have shown an increased willingness to rule that discovery is disproportionate and impose limits accordingly.11 On the other hand, courts are rejecting objections couched in general and boilerplate language12 and refusing to compel responses to burdensome, overreaching requests.13
Notably, although the amendments removed the words "reasonably calculated to lead to the discovery of admissible evidence" from Rule 26(b), thus making clear that those words do not describe the scope of permissible discovery, some courts continue to refer to that standard, often in combination with the new proportionality factors. For example, in Marine Power Holding, LLC v. Malibu Boats, LLC, the District Court for the Eastern District of Louisiana denied a motion to compel after quoting the former "reasonably calculated" language and citing the new Rule's proportionality definition and factors.14 This shows that old habits die hard, and while parties should not rely on this language in seeking discovery or formulating objections, it may still be something courts will consider in evaluating discovery disputes.
Federal Rule of Civil Procedure 34(b)Enforcing Specificity in Responding & Objecting to Requests for Production
The amendments to Rule 34(b)(2)(B) (see "Requests for Production," White Paper, page 6) put a decisive end to oft-used general or blanket objections. Under amended Rule 34(b)(2)(B), parties responding to discovery requests must: (i) avoid general or blanket objections when responding to requests for production; (ii) state whether documents will be withheld pursuant to objections; (iii) state whether they will produce copies or permit inspection; and (iv) complete production "no later than the time for inspection specified in the request or another reasonable time specified in the response." Proportionality objections abiding by these requirements may work to a party's advantage in limiting unnecessary or expensive discovery.
Rule 34(b)Specificity. In cases decided since the December 1, 2016 amendments, courts have been quick to reject boilerplate objections to discovery requests and have also penalized parties for relying on stock, general objections. In Moser v. Holland, for example, the District Court for the Eastern District of California held that defendants' identical boilerplate objections that each request was "overbroad, unduly burdensome and oppressive, and not reasonably calculated to lead to the discovery of admissible evidence" were improper and "barred by Rule 33 and 34."15 The court granted plaintiff's motion to compel, ordered defendants to produce documents responsive to plaintiff's document requests, and awarded sanctions for plaintiff's costs of bringing the motion.16
Similarly, in Sprint Communications Co. L.P. v. Crow Creek Sioux Tribal Court, the District Court...