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Has the Amended FRCP 26(b) Made Substantive Changes to Case Law?

Posted on December 12th, 2016

Amended FRCP26(b)

The Scope of Electronic Discovery in 2016

The amended Federal Rules of Civil Procedure went into practice in January 2016. The changes have been shaping and modifying the application of FRCP 26(b), and the amended rule highlights the limitations that proportionality standards impose on the permissible scope of discovery. Let’s take a look at the new rule and its application in case law so far in 2016.

Amended FRCP 26(b) Discovery Scope and Limits

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Post-Amended FRCP 26(b) eDiscovery Cases:

Sunderland v. Suffolk County et. al., Case No. 13-4838 (E.D.N.Y., June 14, 2016). Over the Defendant’s objections that Plaintiff’s ESI request was overly broad under FRCP 26, the court allowed it: the requests were appropriately limited in time and in search terms. Finding the requests to not be intrusive or burdensome, the court ordered Defendant to respond and if no documents existed, to submit affidavits attesting same.

Boone v. TFI Family Services, Inc. et. al., Case No. 14-2548 (D. Kansas, June 3, 2016 and June 6, 2016). The court shot down all of Defendant’s objections under FRCP 26 that the requested ESI was not “proportional to the needs of the case,” and that Defendants failed their burden to establish that responding to the requests outweighed the importance of the information. The court also schooled Defendants that “confidential” is not the same as “privileged,” as confidential information may still be discoverable.

Family Wireless #1, LLC et. al. v. Automotive Technologies, Inc., Case No. 15-01310 (D. Conn., May 19, 2016). After filing a FRCP 26 report for ESI protocol and holding several meet and confers, Plaintiffs sought email chains from an additional six custodians of Defendant. Defendant objected to the request as overly burdensome and argued its effect would be to simply produce duplicate emails. The court did not think it would be burdensome and noted Defendant could de-duplicate the production. However, the court only allowed for three additional custodians that it determined would have the relevant information.

Theidon v. Harvard University, et. al., Case No. 15-10809 (D. Mass., Feb. 4, 2016). In an employment discrimination suit regarding tenure at Harvard, the parties got into an eDiscovery dispute under the amended FRCP 26(b)(2)(C) regarding: whether a protective order should be entered, whether Defendant must provide non-privileged peer review materials and whether records of eight custodians was overly burdensome. The court denied the protective order, ordered the non-privileged documents produced and reduced the number of custodians to those that had direct involvement in the tenure decision.

Bazzi v. YP Advertising & Publishing, LLC, Case No. 15-10741 (E.D. Mich., Feb. 3, 2016). Plaintiff cited FRCP 26(b)(3)(A)(ii) to object to producing a USB drive to Defendant’s computer forensics expert for imaging, saying Defendant did not have a substantial need for the electronic data, as it could download the information from its own computers. The court disagreed, noting that the rule Plaintiff relied on only applied to documents prepared in anticipation of litigation.

Kissing Camels Surgery Center, LLC et. al. v. Centura Health Corporation, et. al., Case No. 12-03012 (D. Colo., Jan. 22, 2016). Court found many of Defendant’s ESI requests to be insufficiently tailored to the issues of the case under the amended FRCP26(b), but also found Plaintiff’s boilerplate objections unacceptable. Specificity is required in objections, as well as whether the materials were being withheld due to the objections.

Anticipating Possible Discovery Disputes Over FRCP 26(b)?

It is essential to have an eDiscovery strategy in place before litigation is commenced. You must anticipate any possible objections under FRCP 26(b) when drafting necessary ESI requests. At ILS, we only work for the plaintiff’s bar, and we assist attorneys throughout the entirety of electronic discovery strategy planning, including but not limited to drafting requests, motion practice, document review, computer forensics and more.

Be sure to read our past newsletter on amended FRCP 37(e).

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