The Recent Amendments to FRCP: Retroactive Case Applications
Effective December 1, 2015, new amendments to the Federal Rules of Civil Procedure became law. In the last two months, a number of federal judges have discussed the new discovery rules, and the majority have applied the amendments to cases filed prior to the effective date. Below are highlights from some of the recent decisions:
Retroactive Application of New Federal Discovery Rules: Case Updates
- Stinson et. al. v. City of New York et. al., Case No. 10-4228 (S.D.N.Y., Jan. 2, 2016): In a suit against the NYPD as well as a former NYPD commissioner and New York City itself, Plaintiffs filed a motion for sanctions based upon missing emails allegedly destroyed because of an untimely litigation hold letter and failure to properly circulate and implement the hold letter. The court found gross negligence and ordered a permissive inference instruction. In a footnote, the court noted that although Rule 37(e) had been amended as of December 1, 2015, which was after Plaintiffs’ motion was filed, the court noted that the new rule would apply retroactively to a case only if it would be “just and practicable” to do so. The court found that it would not be “just and practicable” to apply the new Rule 37(e) to this case, as the standards for sanctions for destruction of ESI had changed, and the parties had not brief the issue based upon the new rule.
- Matthew Enterprise, Inc. v. Chrysler Group, LLC, Case No. 13-04236 (N.D. Cal., Dec. 10, 2015): Plaintiff, a car dealership, sued Defendant, a car manufacturer, for denying certain incentives and dealer pricing on vehicles that Defendant allegedly gave to other dealers in the area. Defendant filed a Motion to Compel production of, among other things, certain ESI, such as corporate email accounts and financial documents of Plaintiff. The court applied the amended Rules to this case and ordered Plaintiff to turn over certain emails based upon the proportionality requirements of the new Rules. The court applied the amendments even though the motion was filed prior to the effective date of the amendments, stating in footnote that the Supreme Court’s order accompanying the amendments required their retroactive application. The court found that it was not prejudicial to apply the amendments to this case.
- Cat3, LLC et. al. v. Black Lineage, Inc. et. al., Case No. 14-5511 (S.D. N.Y., Jan. 12, 2016): Plaintiffs sued Defendants for various business torts related to trademark infringement and unfair competition. During depositions, Defendants discovered discrepancies between emails produced in discovery responses and emails produced at a deposition and demanded production in native format. The court ordered Plaintiffs to produce the ESI, and upon analysis by a forensic computer expert, determined that emails had been deleted and replaced. Defendants filed a Motion for Sanctions, and the court held an evidentiary hearing. Looking to the amended Rule 37(e), as the court determined it would not be unjust or impracticable to do so, the court determined that a party has a duty to preserve relevant information when it reasonably anticipates litigation. The court ordered that Plaintiffs had to use the unaltered versions of the emails and had to pay Defendants’ costs and fees incurred in filing the Motion for Sanctions.
- McKinney/Pear Restaurant Partners, L.P. v. Metropolitan Life Insurance Company, et. al., Case No. 14-2498 (N.D. Tex., Jan. 8, 2016): In this breach of lease case, Plaintiff filed a Motion to Compel, asserting that Defendants’ responses were boilerplate and accusing Defendants of refusing to produce ESI and metadata. Plaintiff also accused Defendants of improperly redacting certain information. The court reviewed the Motion under the amended Rules (finding their application to be just and practicable) and ordered Defendants to disclose where and how they stored their ESI. However, the court found that Defendants’ produced of the documents as they were held in the ordinary course of business (and without having forensically copied them) did not violate Rule 34.
- Nuvasive, Inc. v. Madsen Medical, Inc. et. al., Case No. 13-2077 (S.D. Cal., Jan. 26, 2016): Previously in the case, certain of the Defendants filed a Motion for Sanctions against Plaintiff and obtained an adverse inference instruction. Plaintiff filed a Motion to Vacate the adverse inference instruction, arguing that the court inappropriately applied the amended Rule 37(e) retroactively. The court reviewed the amended 37(e) and found that Plaintiff’s actions did not meet the new requirement of intent. In its prior ruling, the court found for Defendants because Plaintiff failed to enforce compliance with its litigation hold, but did not find that Plaintiff intentionally spoliated evidence. The court vacated the order granting Defendants’ Motion for Sanctions, finding no prejudice to Defendants in retroactively applying Rule 37(e).
Learn More About the FRCP Amendments and Electronic Discovery with Our Plaintiff eDiscovery Experts
The amendments to the Federal Rules of Civil Procedure make it more important than ever to properly preserve, catalog, review, and produce ESI. The Plaintiff ESI discovery experts at ILS assist Plaintiffs’ counsel with all aspects of eDiscovery. Contact us today to find out more about our electronic discovery services.