In recent months, there have been three major FRCP rule changes that every litigator needs to be fully aware of:
No. 1: Recent changes to FRCP 34 spell the end of boilerplate discovery objections. Litigators who ignore these changes risk being sanctioned by the court.
No. 2: Changes to Rule 37 regarding sanctions for discovery failures lessens the fear of sanctions for data lost through the normal course of business, and has lessened the over-preservation of data that was rampant in litigation in years past.
No. 3: Changes to Rule 26 highlight the need to be concise with what you ask for in discovery – as the scope of discovery is now more narrowly defined. These changes went into effect in December 2015, but as recent case law indicates, many counsel are not yet aware.
Several changes to the Federal Rules of Civil Procedure (FRCP) may have a huge impact on how you practice law if you are involved in litigation.
First, recent changes to FRCP 34 spell the end of boilerplate discovery objections. Litigators who ignore these changes risk being sanctioned by the court.
Second, changes to Rule 37 regarding sanctions for discovery failures lessens the fear of sanctions for data lost through the normal course of business, and has lessened the over-preservation of data that was rampant in litigation in years past.
Third, changes to Rule 26 highlight the need to be concise with what you ask for in discovery – as the scope of discovery is now more narrowly defined. These changes went into effect in December 2015, but as recent case law indicates, many counsel are not yet aware.
This column will discuss each of these changes in turn. This month, we address Rule 34.
The “Duke Rules”
It is important to note that these rule changes did not go unnoticed at the time they were being proposed. In fact, this set of proposed amendments was first developed during the 2010 Federal Rules Advisory Committee meeting held at Duke University.
They are appropriately referred to as the “Duke Rules.” Because the committee was so strident in changing the discovery procedures, the public comment reached epic proportions. In fact, more than 2,300 individuals submitted written commentary to the rules committee – more than had ever been submitted previously.
fie rules committee conducted three separate public hearings on the initial proposals in late 2013 and early 2014, which involved 120 testifying witnesses. Expansive comments were provided by Lawyers for Civil Justice and the American Association for Justice.
Individual comments were submitted by representatives of corporations, advocacy groups and law firms, as well as attorneys and representatives of plaintiff advocacy groups for individual claimants.
After some major modifications, the U.S. Supreme Court adopted most of the “Duke Rules” effective Dec. 1, 2015.
No More Boilerplate Objections!
The rule changes to FRCP 34 consist of three major differences:
- You must state with specificity your objections.
- You must state whether any items are being withheld on the basis of these specific objections.
- You must state when you will produce any unobjectionable responsive items pursuant to each request.
Courts interpreting these new rule changes, and the failure to follow them, have understandably become more upset with the lack of attorney compliance as time passes.
In Fischer v. Forrest, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017), Magistrate Judge Andrew Peck issued a “wake-up call” to attorneys about their responsibilities under FRCP 34.
Judge Peck makes it clear in this ruling that boilerplate objections to everything under the sun are not effective, and do not comply with the “speedy and efficient” requirement of Rule 1.
General objections should rarely be used after Dec. 1, 2015, unless each such objection applies to each document request (e.g., objecting to produce privileged material).
Just a few weeks later, in Liguria Foods, Inc. v. Grifth Labs., Inc., 2017 WL 976626 (N.D. Iowa March 13, 2017), District Judge Mark Bennett evaluated a case where both sides had improperly used boilerplate and found that, “both parties’ reliance on improper ‘boilerplate’ objections is the result of a local ‘culture’ of protectionist discovery responses, even though such responses are contrary to the decisions of every court to address them.”
Judge Bennett then added “that such responses arise, at least in part, out of ‘lawyer paranoia’ not to waive inadvertently any objections that might protect the parties they represent” even though “such ‘boilerplate’ objections do not, in fact, preserve any objections.” (Id., emphasis added.)
The judge declined to impose sanctions in this case; however, he noted that he will not tolerate such abuses in his court in the future, stating:
No more warnings. In the future, using ‘boilerplate’ objections to discovery in any case before me places counsel and their clients at risk for substantial sanctions.
Cease and Desist!
What does this mean for litigators? You should stop using old templates or forms immediately in responding to discovery requests. Each response should be carefully tailored to fully address the information being sought, and to give an informative answer as to what is being produced and what is being withheld based on an objection.
The best way to comply with the new rule is to know your client’s data from the outset of your case. Meeting with your client and with an e-discovery consultant at the beginning of the litigation process will accomplish two major goals:
- You will be able to get a handle on what responsive data the client is likely to have, including the type (e.g., e-mail, spreadsheets, structured database data, cloud-based data), and where it is all stored.
- You will be able to ensure that it is properly preserved for litigation in order to avoid spoliation sanctions under Rule 37 (the new Rule 37 requirements will be covered in an upcoming column). Diane Kilcoyne