The New Federal Rules of Civil Procedure for the Digital Age

We look at civil litigation again because, effective today, Congress and the Supreme Court have amended the influential Federal Rules of Civil Procedure in some important ways. These are the rules that guide how the federal courts handle civil actions, with the overall goal being to resolve every case in a just, speedy, and inexpensive way.

Most pointedly, the new rules address the explosion of electronic discovery (or e-discovery) and electronically-stored information (ESI) in the digital age. They are the first amendments to the rules governing e-discovery and ESI since those rules were first adopted in 2006. You can look here for the full text of the amendments, the advisory committee’s notes to them, and other commentary.

What are some key takeaways? Here are four.

First, the amendments aim to speed up a case. Under the new rules, you must serve your complaint within 90 days (rather than 120 days) of its filing, and the court must now issue its first scheduling order within 60 days (not 90 days) of any defendant’s appearance in the case or 90 days (not 120 days) of any defendant’s being served, whichever is sooner. Then, whichever side you’re on, you will need to consider e-discovery from the outset, and you will need to discuss its preservation, production, and cost with the other side. The court’s scheduling order may well address these issues specifically, and the court may involve itself sooner than later to quell any disputes.

Second, they emphasize proportional discovery. Under the new rules, a party may discover any non-privileged matter that is relevant to a claim or defense and proportional to the needs of the case (unless otherwise limited by court order). What’s proportional will depend on the importance of the issues at stake, the amount in controversy, the parties’ resources, their relative access to information, the importance of the discovery to resolving their dispute, and whether its burden or expense outweighs its likely benefit. These factors are not new—most have been around for thirty years—but the new rules put them front and center to address the ongoing explosion of digital data in life and law.

Third, they aim to curb dilatory tactics. Under the new rules, if a party objects to a request for ESI (or any other document or thing), it must state the basis for its objection with specificity, state whether it’s withholding any documents on that basis, and produce any other responsive documents within a stated, reasonable time.

Fourth, they install a new, graduated regime to redress failures to preserve ESI in anticipation of litigation (which means a case is pending or reasonably foreseeable).

Under these rules, a court may order measures that are sufficient, but no greater than necessary, to cure harm to one party from another’s failure to take reasonable steps to preserve ESI. The rules emphasize reasonable steps to preserve data, not perfection, so if a party’s response was reasonable then there’s no violation. For many businesses, that will include suspending document-management systems or policies that automatically purge data at regular intervals and getting the word out to each custodian who needs to know. The rules also emphasize harm to another party, so even if there was a violation but the lost data can be restored or replaced through further discovery then the court will simply order that. But if that’s not enough then the court may take further steps in its discretion to right the scales. For example, it may preclude the responsible party from putting on evidence of its own, or it may permit the aggrieved party to present evidence about the loss of data and argue it to the jury. Finally, if the court finds that the responsible party intended to deprive the other party of the data then it may choose from three more, escalating sanctions:

1. presuming that the lost information was adverse to that party;
2. instructing the jury that it may or must presume that as well; or
3. dismissing the case or entering a default judgment.