Posts Tagged “FEDERAL RULES AMENDMENTS”

Statements of Information Withheld Comply with Amended Rule 34, Motion to Compel Denied

Rowan v. Sunflower Elec. Power Corp., No. 15-cv-9227-JWL-TJJ, 2016 WL 3743102 (D. Kan. July 13, 2016)

In this case, the court addressed, among other things, the sufficiency of Defendant’s objections to Plaintiff’s Requests for Production and in particular its compliance with the new requirements of amended Fed. R. Civ. P. 34, effective as of December 1, 2015. Upon review of the objections and Defendant’s statements of information witheld (as expressed by Defendant’s identification of its search parameters), the court concluded that Defendant’s responses were sufficient and counseled Plaintiff to make additional inquiries in future discovery to the extent he desired additional information.

Effective December 1, 2015, Fed. R. Civ. P. 34(b)(2)(C) was amended to require that objections to Requests for Production include a statement indicating “whether any responsive materials are being witheld on the basis of that objection.” Per the Advisory Committee’s note, “An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been ‘witheld.’”

In the present case, Plaintiff challenged the sufficiency of Defendant’s objections and in particular its statements regarding information witheld. The court addressed four examples in its opinion:

  1. Where Defendant responded to certain RFPs by objecting and stating that “[Defendant] has limited its search to the e-mail.PST files for project management for the subject project, and has produced all non-privileged e-mails and attachments identified therein relating to the subject project,” the court found that the response complied with Rule 34(b)(2)(C).
  2. Where Defendant responded to requests for “documents reflecting [Defendant’s] bid analyses of subcontractors who submitted bids for the project” by stating in relevant part that “it limited its search for responsive documents to all bid proposals [Defendant] received for the project dated July 25 and November 1, 2013, and to the evaluation and recommendation letters submitted for those bid proposals,” the court again found that the response complied with Rule 34(b)(2)(C).
  3. Where Defendant responded to a request seeking “all documents reflecting an investigation of the incident surrounding Plaintiff’s injuries” with a statement “that it limited its search to OSHA’s investigation, its own investigation report, Track’s investigation report, and email .PST files for project management for the subject project,” the court found that “[u]nder Rule 34, [Defendant] ha[d] provided a sufficient response.”
  4. Where Defendant responded to a “very broad request” seeking “any documents” regarding internal meetings related to specified topics by objecting to the overbroad nature of the request and stating that it “limited its search to the email .PST files for project management for the project,” the court found that the response complied with Rule 34.

Accordingly, the court denied Plaintiff’s Motion to Compel.

A full copy of the court’s Memorandum and Order is available here.

Court Concludes Defendant’s Request was “precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude.”

Gilead Sciences, Inc. v. Merck & Co., Inc., No. 5:13-cv-04057-BLF, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016)

In this case, the court addressed Defendant’s motion to compel production of additional discovery and, applying newly amended Fed. R. Civ. P. 26(b)(1), determined that Defendant’s request was “precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude.” Accordingly, the motion was denied.

In this patent infringement case, Defendant sought additional discovery regarding the contents of certain “tubes of compounds” pictured in a photograph produced by Plaintiff’s expert in related Canadian litigation, claiming it “should not have to take [Plaintiff’s] word as to what exactly [was] in those tubes.” Plaintiff claimed that the contents of the tubes were not the compound at issue in the case.

Taking up Defendant’s motion to compel, the court began with a discussion of proportionality:

Proportionality in discovery under the Federal Rules is nothing new. Old Rule 26(b)(2)(C)(iii) was clear that a court could limit discovery when burden outweighed benefit, and old Rule 26(g)(1)(B)(iii) was clear that a lawyer was obligated to certify that discovery served was not unduly burdensome. New Rule 26(b)(1), implemented by the December 1, 2015 amendments, simply takes the factors explicit or implicit in these old requirements to fix the scope of all discovery demands in the first instance.

What will change—hopefully—is mindset. No longer is it good enough to hope that the information sought might lead to the discovery of admissible evidence. In fact, the old language to that effect is gone. Instead, a party seeking discovery of relevant, non-privileged information must show, before anything else, that the discovery sought is proportional to the needs of the case. The present dispute offers a good example of the wisdom of the Advisory Committee on Civil Rules in elevating proportionality in defining the scope of permissible discovery.

Turning to the specific facts of the case, the court noted that Defendant “ha[d] long had information from [Plaintiff]” that confirmed the contents of the pictured tubes, including a laboratory notebook and a letter from the source of the photograph, and that Defendant offered “no real evidence” to contradict Plaintiff’s representations. Accordingly, the court concluded, “[Defendant’s] demands are exactly the type of disproportionate demands that Rule 26(b)(1) proscribes.”  The court went on to note that Defendant’s request would put Plaintiff “[i]n the position of having to produce discovery on all sorts of compounds that bear no indication of any nexus to the disputes in this case,” and analogized the request to “requiring GM to produce discovery on Buicks and Chevys in a patent case about Cadillacs simply because all three happen to be cars.”

Ultimately, the court concluded that “[i]n the absence of any reason to doubt the proof [Plaintiff] has tendered about the identity of the disputed compounds, and given the cost and potential delay introduced by the requested production, [Defendant’s] request is precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude.”  Defendant’s motion was therefore denied.

A full copy of the court’s short order is available here.

“The amendments may not look like a big deal at first glance, but they are.” – Chief Justice Roberts, 2015 Year-End Report on the Federal Judiciary

Chief Justice John Roberts has issued his annual report on the federal judiciary, focused primarily on the 2015 amendments to the Federal Rules of Civil Procedure, including a brief history of their development and discussion of their intended effects. Among other things, the report makes clear that the amendments “mark significant change, for both lawyers and judges, in the future conduct of civil trials.”  The report further counsels that:

The 2015 civil rules amendments are a major stride toward a better federal court system. But they will achieve the goal of Rule 1—“the just, speedy, and inexpensive determination of every action and proceeding”—only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change.

A full copy of the report is available for download, here.

Court Applies Amended Rule 26, Concludes Burdens on Parties Resisting Discovery Have Not Fundamentally Changed

Carr v. State Farm Mut. Auto. Ins. Co., No.3:15-cv-1026-M, 2015 WL 8010920 (N.D. Tex. Dec. 7, 2015)

In this case, the court addressed Defendant’s Motion to Compel discovery responses and undertook substantial analysis of the effects of newly amended Federal Rule of Civil Procedure 26 on the burdens of parties’ resisting discovery, concluding they had not fundamentally changed.

Defendant sought to compel Plaintiff’s production of additional discovery and moved accordingly. Taking up the motion, the court opined that the recent amendments to Rule 26 “raise the possibility that the burdens imposed on the party resisting discovery . . . must fundamentally change as well” but ultimately concluded that “it [was] not so.”

In so deciding, the court relied in part upon the Rule’s substantial Committee Note, including:

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. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.

Accordingly, the court explained:

To be sure, just as was the case before the December 1, 2015 amendments, under Rules 26(b)(1) and 26(b)(2)(C)(iii), a court can – and must – limit proposed discovery that it determines is not proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit – and the court must do so even in the absence of a motion. See Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011) (“Accordingly, district courts must be mindful of the limitations placed on the frequency and extent of discovery under the federal rules, particularly Rule 26(b). For instance, a district court must limit otherwise permissible discovery if it determines that ‘the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.’ FED. R. CIV. P. 26(b)(2)(C)(iii); see Murphy, 619 F.3d at 1163 (holding that all discovery, including discovery in ERISA matters, ‘is limited by Rule 26(b)(2), which protects against, inter alia, overly burdensome discovery requests, discovery of cumulative materials, and overly costly discovery requests’). Rule 26(b) ‘has never been a license to engage in an unwieldy, burdensome, and speculative fishing expedition.’ Murphy, 619 F.3d at 1163. We trust that district courts will guard against abusive discovery.”).

But a party seeking to resist discovery on these grounds still bears the burden of making a specific objection and showing that the discovery fails the proportionality calculation mandated by Rule 26(b) by coming forward with specific information to address – insofar as that information is available to it – the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

The party seeking discovery, as the Committee Note recognizes, may well need to – in order to prevail on a motion to compel or resist a motion for protective order – make its own showing of many or all of the proportionality factors, including the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, and the importance of the discovery in resolving the issues, in opposition to the resisting party’s showing.

And, as the Committee Note recognizes, the party seeking discovery is required to comply with Rule 26(b)(1)’s proportionality limits on discovery requests; is subject to Federal Rule of Civil Procedure 26(g)(1)’s requirement to certify “that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:… (B) with respect to a discovery request…, [the request] is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action”; and faces Federal Rule of Civil Procedure 26(g)(3) sanctions “[i]f a certification violates this rule without substantial justification.” FED. R. CIV. P. 26(g)(1)(B), 26(g)(3); see generally Heller v. City of Dallas, 303 F.R.D. 466, 475-77, 493-95 (N.D. Tex. 2014).

*10 But the amendments to Rule 26(b) and Rule 26(c)(1) do not alter the basic allocation of the burden on the party resisting discovery to – in order to prevail on a motion for protective order or successfully resist a motion to compel – specifically object and show that the requested discovery does not fall within Rule 26(b)(1)’s scope of proper discovery (as now amended) or that a discovery request would impose an undue burden or expense or is otherwise objectionable. See McLeod, 894 F.2d at 1485; Heller, 303 F.R.D. at 483-93.

Defendant’s motion was granted. A full copy of the court’s opinion and order is available here.

Today is the Day! Amendments to Federal Rules of Civil Procedure Effective Dec. 1, 2015

The wait is over.  Amendments to the Federal Rules of Civil Procedure are effective today.

The 2015 amendments to the Federal Rules of Civil Procedure are significant and will have a direct impact on the day to day practice of law, particularly discovery.  If you’ve been putting off your review of the amendments, the time for action is now!  Take a few minutes (or a few hours) to review these important amendments and/or attend one of K&L Gates’ two live events to learn more! (Live events are also available via webinar.)

CLICK HERE for an overview of the rules amendments package.

To register for K&L Gates’ complimentary CLE, “Federal Rule Changes Affect e-Discovery – Are You Ready This Time?” follow the links below:

  • CLICK HERE to attend LIVE! in Seattle: Dec. 1, 2015, 1:30 PM -5:30 (with post-program reception)
  • CLICK HERE to attend LIVE! in Pittsburgh: Dec. 3, 2015, 8:30 AM-12:15
  • Can’t Attend in Person? Email Allison Peterson (allison.peterson@klgates.com) to attend via Webinar. Log-in instructions will be emailed to you.