2017 trial lawyers summit
TRANSCRIPT
2017 TRIAL LAWYERS SUMMIT MIAMI, FLORIDA – FEBRUARY 5-8, 2017
Adapting (or Perishing) In the Evolving World of
Electronically Stored Information: Fundamental Concepts and Principles Which You Need
to Know and Understand Regarding “E-discovery”
Presented By: Dustin B. Herman, Esq.
Table of Contents of Materials Provided
1. Example preservation letter focusing on electronically stored information
2. Subpoena information for cell phone carriers and other social media sites like Twitter and Facebook
3. Procedure for downloading an entire Facebook profile – including all pictures and wall posts
4. Appendix K of the Local Rules for the Northern District of Ohio (provides an outstanding procedure for addressing discovery of electronically stored information)
5. Example of an ESI and Document Discovery Protocol
6. Example of a Protocol for Plaintiff’s participation in Technology Assisted Review/predictive coding
7. Desk Reference with Redlined Version of the 2015 Amendments to the Federal Rules of Civil Procedure
DUSTIN B. HERMAN, ESQ. Spangenberg Shibley & Liber LLP 001 Lakeside Avenue, East Suite 1700 Cleveland, Ohio 44114 216-696-3232 Office 216-696-3924 Fax 727-480-6871 Cell [email protected] www.spanglaw.com
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May 9, 2014 David J. Walz Carlton Fields Jorden Burt Corporate Center Three at International Plaza 4221 W. Boy Scout Boulevard Tampa, Florida 33607-5780 [email protected] Counsel for: Orthopedic Implant Professionals d/b/a Orthopedic Implant Consultants, Inc. Stryker South Florida 505 NW 65th Court, Suite 102, 505 NW 65th Court, Suite 102, Fort Lauderdale, Florida 33309 Fort Lauderdale, Florida 33309 Re: DEMAND TO PRESERVE EVIDENCE IN RE: REJUVENATE AND ABG II MODULAR HIP IMPLANT LITIGATION
BROWARD COUNTY, FLORIDA; CASE NO.: 14-90000(26) David: Please be advised that you and your clients, Orthopedic Implant Professionals d/b/a Stryker South Florida (hereinafter “OIP”) and Orthopedic Implant Consultants, Inc., (hereinafter “OIC”) are and have been under a legal duty to maintain, preserve, retain, protect, and not destroy any and all documents and data, both electronic and hard copy, that may be relevant to claims of injury resulting from the failure of the Rejuvenate Modular and/or ABG II Modular Hip Systems. This duty includes the obligation to issue preservation directives (or legal holds) to all employees, agents, representatives, independent contractors and third parties who may have relevant documents, data and/or discovery related to this litigation. The Urgent Field Safety Notice released by Stryker in April 2012 concerning the two aforementioned products should have put OIP and OIC on notice that litigation was imminent, and OIP and OIC should have issued a companywide litigation hold at that time. The Broward County, Florida Plaintiffs in the matter, IN RE: REJUVENATE AND ABG II MODULAR HIP IMPLANT LITIGATION, Consolidated Case No.: 14-90000(26), demand that you preserve all documents, tangible things and electronically stored information as more fully described herein. As used in this document, “you” and “your” refers to OIP and OIC and their predecessors, successors, parents, subsidiaries, divisions or affiliates, and their respective officers, directors, agents, attorneys, accountants, employees, partners or other persons occupying similar positions or performing similar functions. You should anticipate that much of the information subject to disclosure or responsive to discovery in this matter is stored on your current and former computer systems and other media and devices (including personal digital assistants, voice-messaging systems, online repositories and cell phones). Electronically stored information (hereinafter “ESI”) should be afforded the broadest possible definition and includes (by way of
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example and not as an exclusive list) potentially relevant information electronically, magnetically or optically stored as:
Digital communications (e.g., e-mail, voice mail, instant messaging, text messages);
Word processed documents (e.g., Word or WordPerfect documents and drafts); Spreadsheets and tables (e.g., Excel or Lotus 123 worksheets); Accounting Application Data (e.g., QuickBooks, Money, Peachtree data files); Image and Facsimile Files (e.g., .PDF, .TIFF, .JPG, .GIF images); Sound Recordings (e.g., .WAV and .MP3 files); Video and Animation (e.g., .AVI and .MOV files); Databases (e.g., Access, Oracle, SQL Server data, SAP); Contact and Relationship Management Data (e.g., Outlook, ACT!); Calendar and Diary Application Data (e.g., Outlook PST, Yahoo, blog tools); Online Access Data (e.g., Temporary Internet Files, History, Cookies); Presentations (e.g., PowerPoint, Corel Presentations); Network Access and Server Activity Logs; Project Management Application Data; Computer Aided Design/Drawing Files; and Back Up and Archival Files (e.g., Zip, .GHO)
ESI resides not only in areas of electronic, magnetic and optical storage media reasonably accessible to you, but also in areas you may deem not reasonably accessible. You are obliged to preserve potentially relevant evidence from both these sources of ESI, even if you do not anticipate producing such ESI. The demand that you preserve both accessible and inaccessible ESI is reasonable and necessary. Pursuant to the Florida Rules of Civil Procedure, you must identify all sources of ESI you decline to produce and demonstrate to the court why such sources are not reasonably accessible. For good cause shown, the court may then order production of the ESI, even if it finds that it is not reasonably accessible. Accordingly, even ESI that you deem reasonably inaccessible must be preserved in the interim so as not to deprive the plaintiffs of their right to secure the evidence or the Court of its right to adjudicate the issue.
Preservation Requires Immediate Intervention Many of your employees have significant contact with doctors who performed implant and/or explant surgeries of the Rejuvenate Modular and/or the ABG II Modular Hip Systems and the hospitals where such surgeries were performed. These employees are likely to have significant amounts of ESI relevant to this case stored on their personal cell phones and laptops and other electronic devices – especially in the form of text messages and emails. YOU SHOULD HAVE ALREADY SENT OUT A WRITTEN LETTER TO EVERY EMPLOYEE AND AGENT OF OIP AND OIC INSTRUCTING THEM TO NOT DELETE OR DESTROY ANY ESI – INCLUDING TEXT MESSAGES AND EMAILS – FROM THEIR CELLULAR PHONES AND OTHER ELECTRONIC DEVICES WHICH RELATE TO COMMMUNICATIONS THEY HAVE HAD WITH DOCTORS AND HOSPTIALS, especially, but certainly not limited to the following:
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a) Dr. Robert Zann;
b) Dr. Stephen Naide;
c) Dr. David Padden;
d) Dr. William Leone;
e) Dr. Andrew Ellowitz;
f) Dr. Bruce Janke;
g) Dr. Elvis Grandic;
h) Dr. Marc Hammerman;
i) Holy Cross Hospital;
j) Memorial Healthcare System;
k) Delray Medical Center;
l) Broward Health North;
m) Boca Raton Regional Hospital; and
n) any other physicians and/or hospitals known to or identifiable by
OIP/OIC with whom agents, employees and/or representatives had or
made contact regarding the relevant issues in this litigation.
Suspension of Routine Destruction You are directed to immediately initiate a litigation hold for potentially relevant ESI, documents and tangible things, and to act diligently and in good faith to secure and audit compliance with such litigation hold. You are further directed to immediately identify and modify or suspend features of your information systems and devices that, in routine operation, operate to cause the loss of potentially relevant ESI. Examples of such features and operations include:
Purging the contents of e-mail repositories by age, capacity or other criteria; Using data or media wiping, disposal, erasure or encryption utilities or devices; Overwriting, erasing, destroying or discarding back up media; Re-assigning, re-imaging or disposing of systems, servers, devices or media; Running antivirus or other programs effecting wholesale metadata alteration; Releasing or purging online storage repositories; Using metadata stripper utilities; Disabling server or IM logging; and, Executing drive or file defragmentation or compression programs.
Servers With respect to servers like those used to manage electronic mail (e.g., Microsoft Exchange, Lotus Domino) or network storage (often called a user’s “network share”), the complete contents
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of each user’s network share and e-mail account should be preserved. There are several ways to preserve the contents of a server depending upon, e.g., its RAID configuration and whether it can be downed or must be online 24/7. If you question whether the preservation method you pursue is one that we will accept as sufficient, please call to discuss it. Home Systems, Laptops, Online Accounts and Other ESI Venues Though we expect that you will act swiftly to preserve data on office workstations and servers, you should also determine if any home or portable systems may contain potentially relevant data. To the extent that officers, board members or employees have sent or received potentially relevant e-mails or created or reviewed potentially relevant documents away from the office, you must preserve the contents of systems, devices and media used for these purposes (including not only potentially relevant data from portable and home computers, but also from portable thumb drives, CD-R disks and the user’s PDA, smart phone, voice mailbox or other forms of ESI storage.). Similarly, if employees, officers or board members used online or browser-based email accounts or services (such as AOL, Gmail, Yahoo Mail or the like) to send or receive potentially relevant messages and attachments, the contents of these account mailboxes (including Sent, Deleted and Archived Message folders) should be preserved.
Ancillary Preservation You must preserve documents and other tangible items that may be required to access, interpret or search potentially relevant ESI, including logs, control sheets, specifications, indices, naming protocols, file lists, network diagrams, flow charts, instruction sheets, data entry forms, abbreviation keys, user ID and password rosters or the like. You must preserve any passwords, keys or other authenticators required to access encrypted files or run applications, along with the installation disks, user manuals and license keys for applications required to access the ESI. You must preserve any cabling, drivers and hardware, other than a standard 3.5” floppy disk drive or standard CD or DVD optical disk drive, if needed to access or interpret media on which ESI is stored. This includes tape drives, bar code readers, Zip drives and other legacy or proprietary devices.
Paper Preservation of ESI is Inadequate As hard copies do not preserve electronic searchability or metadata, they are not an adequate substitute for, or cumulative of, electronically stored versions. If information exists in both electronic and paper forms, you should preserve both forms.
Agents, Attorneys and Third Parties Your preservation obligation extends beyond ESI in your care, possession or custody and includes ESI in the custody of others that is subject to your direction or control. Accordingly, you must notify any current or former agent, attorney, employee, custodian or contractor in possession of potentially relevant ESI to preserve such ESI to the full extent of your obligation to do so, and you must take reasonable steps to secure their compliance.
Guard Against Deletion/Destruction You should anticipate that your employees, officers or others may seek to hide, destroy or alter ESI and act to prevent or guard against such actions. Especially where company machines have
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been used for Internet access or personal communications, you should anticipate that users may seek to delete or destroy information they regard as personal, confidential or embarrassing and, in so doing, may also delete or destroy potentially relevant ESI. This concern is not one unique to you or your employees and officers. It’s simply an event that occurs with such regularity in electronic discovery efforts that any custodian of ESI and their counsel are obliged to anticipate and guard against its occurrence.
Do Not Delay Preservation I’m available to discuss reasonable preservation steps; however, you should not defer preservation steps pending such discussions if ESI may be lost or corrupted as a consequence of delay. Should your failure to preserve potentially relevant evidence result in the corruption, loss or delay in production of evidence to which we are entitled, such failure would constitute spoliation of evidence, and we will not hesitate to seek sanctions.
Confirmation of Compliance Please confirm by next Friday, May 16, 2014, that you have taken the steps outlined in this letter to preserve ESI and tangible documents potentially relevant to this action. If you have not undertaken the steps outlined above, or have taken other actions, please describe what you have done to preserve potentially relevant evidence. Finally, based upon the meet and confers held on Thursday, May 1 and Friday, May 2, we are deeply concerned that OIP and OIC have failed to issue the necessary legal holds, preservation directives and sweep directives to ensure all relevant discovery has been preserved and gathered. Respectfully, Dustin B. Herman, Esq. cc: Broward County Plaintiffs
1 For instance, in a patent case, the relevant times for a patent holder may not only be the time of the allegedinfringement, but may also be the date the patent(s) issued or the effective filing date of each patent in suit.
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LR - APPENDIX K
UNITED STATES DISTICT COURTNORTHERN DISTRICT OF OHIO
DEFAULT STANDARD FOR DISCOVERY OF ELECTRONICALLY STORED INFORMATION (“E-DISCOVERY”)
1. Introduction. The court expects the parties to cooperatively reach agreement on how
to conduct e-discovery. In the event that such agreement has not been reached by the time of the
Fed. R. Civ. P. 16 scheduling conference, the following default standards shall apply until such time,
if ever, the parties reach agreement and conduct e-discovery on a consensual basis.
2. Discovery conference. Parties shall discuss the parameters of their anticipated e-
discovery at the Fed. R. Civ. P. 26(f) conference, as well as at the Fed. R. Civ. P. 16 scheduling
conference with the court, consistent with the concerns outlined below.
Prior to the Rule 26(f) conference, the parties shall exchange the following information:
a. A list of the most likely custodians of relevant electronically stored information
(“identified custodians”), including a brief description of each person’s title and
responsibilities (see ¶ 7).
b. A list of each relevant electronic system that has been in place at all relevant times1
and a general description of each system, including the nature, scope, character,
organization, and formats employed in each system. The parties should also include
other pertinent information about their electronically stored information and whether
that electronically stored information is of limited accessibility. Electronically stored
information of limited accessibility may include those created or used by electronic
media no longer in use, maintained in redundant electronic storage media, or for
which retrieval involves substantial cost.
c. The name of the individual designated by a party as being most knowledgeable
regarding that party’s electronic document retention policies (“the retention
coordinator”), as well as a general description of the party’s electronic document
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retention policies for the systems identified above (see ¶ 6).
d. The name of the individual who shall serve as that party’s “e-discovery coordinator”
(see ¶ 3).
e. Provide notice of any problems reasonably anticipated to arise in connection with e-
discovery.
To the extent that the state of the pleadings does not permit a meaningful discussion of the
above by the time of the Rule 26(f) conference, the parties shall either agree on a date by which this
information will be mutually exchanged or submit the issue for resolution by the court at the Rule
16 scheduling conference.
3. E-discovery coordinator. In order to promote communication and cooperation
between the parties, each party to a case shall designate a single individual through which all e-
discovery requests and responses are coordinated (“the e-discovery coordinator”). Regardless of
whether the e-discovery coordinator is an attorney (in-house or outside counsel), a third party
consultant, or an employee of the party, he or she must be:
a. Familiar with the party’s electronic systems and capabilities in order to explain these
systems and answer relevant questions.
b. Knowledgeable about the technical aspects of e-discovery, including electronic
document storage, organization, and format issues.
c. Prepared to participate in e-discovery dispute resolutions.
The Court notes that, at all times, the attorneys of record shall be responsible for responding
to e-discovery requests. However, the e-discovery coordinators shall be responsible for organizing
each party’s e-discovery efforts to insure consistency and thoroughness and, generally, to facilitate
the e-discovery process. The ultimate responsibility for complying with e-discovery requests rests
on the parties. Fed. R. Civ. P. 37(f).
4. Timing of e-discovery. Discovery of relevant electronically stored information shall
proceed in a sequenced fashion.
a. After receiving requests for document production, the parties shall search their
documents, other than those identified as limited accessibility electronically stored
information, and produce relevant responsive electronically stored information in
accordance with Fed. R. Civ. P. 26(b)(2).
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b. Electronic searches of documents identified as of limited accessibility shall not be
conducted until the initial electronic document search has been completed. Requests
for information expected to be found in limited accessibility documents must be
narrowly focused with some basis in fact supporting the request.
c. On-site inspections of electronic media under Fed. R. Civ. P. 34(b) shall not be
permitted absent exceptional circumstances, where good cause and specific need
have been demonstrated.
5. Search methodology. If the parties intend to employ an electronic search to locate
relevant electronically stored information, the parties shall disclose any restrictions as to scope and
method which might affect their ability to conduct a complete electronic search of the electronically
stored information. The parties shall reach agreement as to the method of searching, and the words,
terms, and phrases to be searched with the assistance of the respective e-discovery coordinators, who
are charged with familiarity with the parties’ respective systems. The parties also shall reach
agreement as to the timing and conditions of any additional searches which may become necessary
in the normal course of discovery. To minimize the expense, the parties may consider limiting the
scope of the electronic search (e.g., time frames, fields, document types).
6. Format. If, during the course of the Rule 26(f) conference, the parties cannot agree
to the format for document production, electronically stored information shall be produced to the
requesting party as image files (e.g., PDF or TIFF). When the image file is produced, the producing
party must preserve the integrity of the electronic document’s contents, i.e., the original formatting
of the document, its metadata and, where applicable, its revision history. After initial production in
image file format is complete, a party must demonstrate particularized need for production of
electronically stored information in their native format.
7. Retention. Within the first thirty (30) days of discovery, the parties should work
toward an agreement (akin to the standard protective order) that outlines the steps each party shall
take to segregate and preserve the integrity of all relevant electronically stored information. In order
to avoid later accusations of spoliation, a Fed. R. Civ. P. 30(b)(6) deposition of each party’s
retention coordinator may be appropriate.
The retention coordinators shall:
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a. Take steps to ensure that relevant e-mail of identified custodians shall not be
permanently deleted in the ordinary course of business and that relevant
electronically stored information maintained by the individual custodians shall not
be altered.
b. Provide notice as to the criteria used for spam and/or virus filtering of e-mail and
attachments; e-mails and attachments filtered out by such systems shall be deemed
non-responsive so long as the criteria underlying the filtering are reasonable.
Within seven (7) days of identifying the relevant document custodians, the retention
coordinators shall implement the above procedures and each party’s counsel shall file a statement
of compliance as such with the court.
8. Privilege. Electronically stored information that contains privileged information or
attorney-work product shall be immediately returned if the documents appear on their face to have
been inadvertently produced or if there is notice of the inadvertent production within thirty (30) days
of such. In all other circumstances, Fed. R. Civ. P. 26(b)(5)(B) shall apply.
9. Costs. Generally, the costs of discovery shall be borne by each party. However, the
court will apportion the costs of electronic discovery upon a showing of good cause.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION WENDY HAJZAK, et al. ) CASE NO.: 1:16-cv-925 ) Plaintiffs, ) JUDGE CHRISTOPHER A. BOYKO ) v. ) ) HOWMEDICA OSTEONICS CORP. ) d/b/a STRYKER ORTHOPAEDICS, ) ORDER ON ESI AND DOCUMENT et al. ) PRODUCTION PROTOCOL ) Defendants. ) ________________________________ )
The procedures and protocols outlined herein govern the production of
electronically stored information (“ESI”) and paper documents by the Parties during the
pendency of this litigation. The production formats for any other materials will be
addressed by the parties after a meet and confer regarding the specific item or category
of items.
A. Duty of Cooperation
The parties acknowledge their duty to work together cooperatively throughout the
discovery process.
B. Definitions
1. “Defendants” means and refers to the named defendants in the above-
captioned matter, as well as any later added defendants, as well as their directors,
principals, employees, agents, and affiliated companies.
2. “Document” is defined to be synonymous in meaning and equal in scope
to the usage of this term in Rules 26 and 34 of the Federal Rules of Civil Procedure.
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The term “Document” shall include Hard-Copy Documents, Electronic Documents, and
ESI as defined herein.
3. “Electronic Document or Data” means Documents or Data existing in
electronic form at the time of collection, including but not limited to: e-mail or other
means of electronic communications, word processing files (e.g., Microsoft Word),
computer presentations (e.g., PowerPoint slides), spreadsheets (e.g., Excel), and image
files (e.g., PDF).
4. “Electronically stored information” or “ESI,” as used herein has the
same meaning as in Federal Rules of Civil Procedure 26 and 34.
5. “Hard-Copy Document” means Documents existing in paper form at the
time of collection.
6. “Native Format” means and refers to the format of ESI in which it was
generated and/or as used by the producing party in the usual course of its business and
in its regularly conducted activities. For example, the native format of an Excel
workbook is a .xls or .xslx file.
7. “Metadata” means: (i) information embedded in or associated with a
native file that is not ordinarily viewable or printable from the application that generated,
edited, or modified such native file which describes the characteristics, origins, usage,
and/or validity of the electronic file; (ii) information generated automatically by the
operation of a computer or other information technology system when a native file is
created, modified, transmitted, deleted, or otherwise manipulated by a user of such
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system, (iii) information, such as Bates numbers, created during the course of
processing documents or ESI for production, and (iv) information collected during the
course of collecting documents or ESI, such as the name of the media device on which
it was stored, or the custodian or non-custodial data source from which it was collected.
8. “Media” means an object or device, real or virtual, including but not limited
to a disc, tape, computer, or other device on which data is or was stored.
9. “Optical Character Recognition” or “OCR” means the process of
recognizing, and creating a file containing, visible text within an image.
10. “Hash Value” is a unique numerical identifier that can be assigned to a
file, a group of files, or a portion of a file, based on a standard mathematical algorithm
applied to the characteristics of the data set. The most commonly used algorithms,
known as MD5 and SHA, will generate numerical values so distinctive that the chance
that any two data sets will have the same Hash Value, no matter how similar they
appear, is less than one in one billion. “Hashing” is used to guarantee the authenticity
of an original data set and can be used as a digital equivalent of the Bates stamp used
in Hard-Copy Document productions.
11. “Confidentiality Designation” means the legend affixed to Documents for
Confidential Discovery Information as defined by, and subject to, the terms of the
Parties’ Discovery Confidentiality Stipulation in this Litigation.
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12. “Searchable Text” means the native text extracted from an Electronic
Document and any Optical Character Recognition text (“OCR text”) generated from a
Hard-Copy Document or electronic image.
13. “Load files” means electronic files provided with a production set of
documents and images used to load that production set into a receiving party’s
document review platform, and correlate its data within that platform.
14. “And” and “or” shall be construed conjunctively or disjunctively as
necessary to make their use inclusive rather than exclusive, e.g., “and” shall be
construed to mean “and/or”.
15. “Include” and “Including” shall be construed to mean “include but not be
limited to” and “including, but not limited to,”.
16. Reference to the singular shall also be deemed to refer to the plural, and
vice-versa.
C. Preservation
1. The Parties represent that they have issued litigation hold notices to those
custodians with data, and persons or entities responsible for maintenance of non-
custodial data, which possibly contain discoverable information.
2. All backup or archive media pertaining which may contain discoverable
ESI not otherwise available have been pulled from rotation and are being preserved.
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3. All processes and procedures which would result in the elimination, or
transfer to a less accessible medium, of any unpreserved data and associated metadata
which would otherwise be required to be preserved or produced have been suspended.
4. Within twenty-one (21) days from entry of this Order, or, for a Defendant
served after the entry of this Order, within twenty-one (21) days from entry of an
appearance in this litigation, each Defendant will identify all ESI preservation systems,
including back-up, archive and disaster recovery systems, and all associated policies,
processes and procedures, including those related to the deletion, removal or transfer of
data from a location.
D. Document and Data Sources
1. By August 12, 2016, or, for a Defendant served after the entry of this
Order, within twenty-one (21) days from entry of an appearance in this litigation, each
Defendant shall identify and describe all non-custodial data sources which possibly
contain discoverable information.
2. Sources of non-custodial documents and sources include databases, file
servers, SANs, NASs, email servers, web servers, on line data stores such as Dropbox,
Box and Google Drive, on line email systems such as Google Mail, document
management systems (DMS), record management systems (RMS), content
management systems (CMS), departmental/project/collaborative/shared storage
spaces, e-rooms, structured data stores, application data, source code repositories,
social media and hard-copy document repositories.
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3. By August 12, 2016, or, for a Defendant served after the entry of this
Order, within twenty-one (21) days from entry of an appearance in this litigation, each
Defendant shall identify the names, titles and roles of custodians who possibly have
discoverable information.
4. Sources of custodial documents and ESI include local hard drives,
network home or personal file shares, removable storage, email, removable storage
media, on-line data storage such as Dropbox or Google Drive, messaging phones,
tablets, social media, and physical files.
5. Within thirty (30) days from each Defendant’s identification of custodial or
non-custodial data sources, Plaintiffs may identify additional custodial or non-custodial
data sources for inclusion under this order. Plaintiffs reserves the right to request, at any
time prior to the close of discovery, inclusion of additional custodians or non-custodial
data sources whose relevance was discovered via documents or data produced, or
testimony given, after the initial Defendants and Plaintiffs designations, or for other good
cause shown. If the Defendants object to the inclusion of such non-custodial or
custodial sources, the Parties will meet and confer to resolve the matter; if the Parties
cannot reach resolution, the Court or its designee will determine the matter.
6. Documents and ESI from identified custodial and non-custodial data
sources will be preserved pending identification of data to be produced into this
litigation.
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7. Defendants have a continuing obligation to identify any other custodial and
non-custodial data sources that may contain information relevant to this litigation, and
preserve them.
E. Identification of Responsive ESI
1. The Parties acknowledge the benefits of using technology-assisted
review (“TAR”) technology and methodology, such as predictive coding systems, in
identifying responsive documents. Used properly and transparently, with appropriate
participation by both Parties, TAR can best ensure that responsive documents will be
identified, and do so with maximum efficiency.
2. Within twenty-one (21) days from entry of this Order, or, for a Defendant
served after the entry of this Order, within twenty-one (21) days from entry of an
appearance in this litigation, each Defendant will identify the TAR system to be used on
its documents, set out their proposed TAR workflow, and provide the TAR system user,
programmer and administrator documentation to Plaintiffs.
3. Within twenty-one (21) days thereafter, the parties will meet and confer to
address the training of the predictive model to be utilized by the TAR system to ensure
that the Parties agree on the classification as responsive or not of all documents,
including “seed” and training documents, utilized by the TAR system in creating and
stabilizing its predictive model, and the criteria under which training will be deemed to
be complete. In the event of disagreements between the parties with respect to the
training workflow and procedures, training completion criteria or classification of a
document, the Court or its designee will determine the issue.
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4. Any privileged documents used in the training or selected for such use
shall be viewed or accessible only to Defendants, who will furnish Plaintiffs with
Defendants’ classification of, and the privilege log information for, each such document,
which Plaintiffs can then opt to have included or not included in the training.
5. The training will be deemed complete and the TAR system’s predictive
model validated when a point estimate of recall of 85% calculated with a 95% level of
confidence and a margin of error of 2.5% on a simple random sample drawn from the
entire collection on which the TAR system was trained or is to be used is achieved.
6. In calculating recall, all non-privileged documents in the sample will be
reviewed by representatives of both Parties and classified as responsive or not. If the
parties do not agree on the classification of a document, the determination will be made
by the Court or its designee. Privileged documents in the sample will be reviewed and
classified only by Defendants, who will provide the classifications and privilege log data
for the documents to the Plaintiffs. At their option, Plaintiffs may have any such
privileged documents removed from the sample.
7. Upon completion of the classification of the sample, the Defendants will
provide the TAR system’s calculations of recall, confidence level and margin of error, its
classification of each document in the sample, and the number of true positives
(documents classified as responsive by the Parties and the TAR system), false
negatives (documents classified as responsive by the Parties but as non-responsive by
the TAR system), false positives (documents classified as non-responsive by the
Parties but as responsive by the TAR system) and true negatives (documents classified
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as non-responsive by the Parties and the TAR system), and the ids of the documents in
each category.
8. Once the TAR system’s predictive model has been deemed validated,
documents classified as responsive by the TAR system will be reviewed for privilege,
with all non-privileged documents, and their non-privileged family members, being
produced and all privileged documents being identified and listed on the privilege log
specified elsewhere in this order.
9. Defendants shall have no obligation to review, produce or log for privilege
any documents classified as non-responsive by the TAR system after successful
validation, except that family members of documents classified as responsive by the
TAR system, documents in discrete document collections, and documents which
Defendants know to be, or have identified as, responsive must be produced or logged
as privileged.
F. Discrete Document Collections.
Identified discrete document collections, such as the Design History File,
Regulatory File, and Marketing File for the Stryker Accolade Hip, shall be produced in
their entirety without regard to whether or not each document in the collection has been
identified as possibly responsive, or deemed to be or classified as, responsive, or, if
search terms are used, contains a search term, except that privileged documents in
such a collection may be withheld and listed in a privilege log as specified elsewhere in
this order.
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G. Other Filtering or Culling Technologies.
Prior to use by any Defendant, the Parties must meet and confer to disclose and
discuss any other proposed use of technologies not specified herein to reduce the
number of documents to be reviewed or produced (i.e., file type culling, e-mail thread
suppression, etc.). Use of these technologies to reduce the reviewable collection or
production, other than as described, requires the consent of Plaintiffs and will be subject
to a separate mutually agreeable protocol for the use of such technologies to be
negotiated by the Parties.
H. Production Format and Processing Specifications
1. Except as otherwise provided herein, the Parties will produce ESI in
Native Format with accompanying [TIFF’s OR TIFF placeholders], applicable metadata
as specified in Attachment A, and extracted searchable text. Redacted ESI will be
produced as TIFFs with applicable metadata and OCR’ed searchable text. Hard-copy
documents will be scanned and produced as TIFFs, with applicable metadata as set out
in Attachment A, and OCR’ed searchable text.
2. Embedded Objects. OLE embedded objects (embedded MS Office files,
etc.) shall be extracted as separate files and treated as an attachments to the parent
document. Images embedded in emails shall not be extracted and produced separately.
3. Load Files. Productions will include image load files in Opticon or IPRO
format as well as Concordance format data (.dat) files with the metadata fields identified
in Exhibit 1 for all included documents. All metadata will be produced in UTF-16LE or
UTF-8 with Byte Order Mark format.
11
4. Foreign Language Documents. Hard-copy documents and ESI that
contains languages other than English, in whole or in part, shall be produced in the
original language(s), along with all machine translations of the searchable text, as well
as any other existing translations. Any subsequent translations in the possession of the
producing party shall also be produced within seven (7) days after their creation.
5. Text Files. A single text file shall be provided for each document. The text
file name shall be the same as the Bates number of the first page of the document with
the document extension “.txt” suffixed. Files names shall not have any special
characters or embedded spaces. Electronic text must be extracted directly from the
native electronic file unless the document requires redaction, is an image file, or is any
other native electronic file that does not contain text to extract (e.g., non-searchable
PDFs). In these instances, and in the case of imaged hard-copy documents, a text file
shall be created using OCR and shall be produced in lieu of extracted text. Extracted
text shall be provided in UTF-16LE or UTF-8 with Byte Order Mark format text.
Extracted text shall include all comments, revisions, tracked changes, speaker’s notes
and text from documents with comments or tracked changes, and hidden worksheets,
slides, columns and rows.
6. OCR. OCR software should be set to the highest quality setting during
processing. Documents containing foreign language text will be OCR’ed using the
appropriate settings for that language, e.g., OCR of German documents will use
settings that properly capture umlauts. Settings such as “auto-skewing” and “auto-
rotation” should be turned on during the OCR process.
12
7. Text Extracted from Emails. Text extracted from emails shall include all
header information that would be visible if the email was viewed in Outlook including: (1)
the individuals to whom the communication was directed (“To”), (2) the author of the
email communication (“From”), (3) who was copied and blind copied on such email
(“CC” and “BCC”), (4) the subject line of the email (“RE” or “Subject”), (5) the date and
time of the email, and (6) the names of any attachments.
8. TIFFs. All TIFFs produced by any party in this matter will be single page
Group IV TIFF format, 300 dpi quality or better. Image file names will be identical to the
corresponding bates numbered images, with a “.tif” file extension. All images of
redacted documents which contain comments, deletions and revision marks (including
the identity of the person making the deletion or revision and the date and time thereof),
speaker notes, or other user-entered data that the source application can display to a
the user will be processed such that all that data is visible in the image. The producing
party will brand all TIFF images in the lower right-hand corner with its corresponding
bates number, using a consistent font type and size. The Bates number must not
obscure any part of the underlying image. If the placement in the lower right-hand
corner will result in obscuring the underlying image, the Bates number should be placed
as near to that position as possible while preserving the underlying image.
9. TIFFs of Redacted ESI. TIFFs of redacted ESI shall convey the same
information and image as the original document, including all non-redacted elements
and formatting which are visible in any view of the document in its native application,
and each redacted area must bear a label containing the reason for the redaction.
13
10. Bates Numbers. All bates numbers will consist of a three digit Alpha
Prefix, followed immediately by an 8 digit numeric: AAA########. There must be no
spaces in the Bates number. Any numbers with less than 8 digits will be front padded
with zeros to reach the required 8 digits.
11. Date Fields Time Zone. All documents shall be processed so as to show
fielded dates and times in Eastern Standard Time.
12. Explanation of Inability to Produce Metadata. If the producing party is
unable to produce metadata for a particular field or ESI document, it will provide an
explanation of that inability with its document production. The Parties shall then meet
and confer to attempt to resolve the problems.
13. Native File Image Placeholders. A Bates-stamped placeholder TIFF,
bearing the legend “This document has been produced in native format” shall be
provided for ESI produced in native format; these placeholders will be Bates numbered
in the same way as any other TIFF, and the Bates number of that single page shall be
used as the BegBates and EndBates of the associated document.
14. Audio Visual Files. Audio and video files are to be produced in the native
file format in which they were maintained in the ordinary course of business. Audio files
in non-standard formats should be produced in MP3 format.
15. Databases, Structured, Aggregated or Application Data. The Parties will
meet and confer to address the production and production format of any responsive
data contained in a database or other structured or aggregated data source or
otherwise maintained by an application. Prior to any such meet and confer, Defendants
14
will provide sufficient information to enable the Plaintiffs to evaluate the best method
and format of production, including such information as the database or data store
name, business purpose, database or data source owner, database schema, tables,
column/field definitions, standard reports, export capabilities, and administrator,
programmer and user manuals. If the parties cannot reach agreement, the matter will
be decided by the Court or its designee.
16. Lost, Destroyed or Irretrievable ESI. If a Defendant learns that responsive
ESI that once existed was lost, destroyed, or is no longer retrievable as a result of acts
or circumstances not occurring in the ordinary course of business, the Defendant shall
comply with its obligations under the Federal Rules of Civil Procedure to explain where
and when the responsive ESI was last retrievable in its original format and to disclose
the circumstances surrounding the change in status of that responsive ESI, whether that
information is available from other sources, and whether any backup or copy of such
original responsive ESI exists. Nothing in this paragraph is intended to expand or limit
the obligations under the Federal Rules of Civil Procedure.
17. Scanning of Hard-Copy Documents. In scanning paper documents,
documents are to be produced as they are kept. For documents found in folders or
other containers with labels, tabs, or other identifying information, such labels and tabs
shall be scanned where practicable. Pages with Post-It notes shall be scanned both
with and without the Post-it, with the image of the page with the Post-it preceding the
image of the page without the Post-It. Defendants will use best efforts to unitize
documents (i.e., distinct documents should not be merged into a single record, and a
15
single document should not be split into multiple records), and maintain document
relationships, i.e., attachment status. Original document orientation (i.e., portrait v.
landscape) should be maintained.
18. Proprietary Software. To the extent that relevant ESI cannot be rendered
or reviewed without the use of proprietary software, the parties shall meet and confer to
minimize any expense or burden associated with the production of such documents in
an acceptable format, including issues as may arise with respect to obtaining access to
any such software and operating manuals.
19. Confidentiality Treatment. The parties will be entering into a Confidentiality
Stipulation in this matter, which will specify various confidentiality treatment levels for
use in this matter.
a. The confidentiality treatment level for any item will be provided with the
created data for that item, in the field entitled “Confidentiality Treatment.” For
items with no confidentiality requirements, the field will be left blank.
b. The producing party will brand any confidentiality endorsements in a corner of
any TIFF images representing the produced item. Those endorsements must
be in a consistent font type and size, and must not obscure any part of the
underlying image or Bates number.
20. Redactions. No redactions for relevance may be made within a produced
document or ESI item. For redacted items which were originally ESI, all metadata fields
will be provided and will include all non-redacted data. Redacted documents shall be
identified as such in the load file provided with the production. A document's status as
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redacted does not relieve the producing party from providing all of the metadata
required herein.
21. De-duplication. The producing party may de-duplicate by MD5 hash
within the materials of a unique custodian or data source. No document that is the
parent or an attachment of a produced document may be withheld as a duplicate. The
producing party will maintain references to all removed duplicate files, and shall provide
the names of all original file locations, etc. of the duplicates of a particular document in
the relevant load file. If the duplicates are e-mails, the producing party must detail the
process of creating the hash value, e.g., the separator, if any, and names and order of
concatenated fields, upon which the MD5 hash was calculated to a sufficient degree
that the receiving party can calculate that hash itself.
22. Color. Paper documents or redacted ESI that contain color necessary to
decipher the meaning, context, or content of the document or ESI shall be produced as
single-page, 300 DPI JPG images with JPG compression and a high quality setting as
to not degrade the original image.
23. Encrypted or Password-Protected ESI. For any ESI that exists in
encrypted format or is password-protected, the producing party will provide the
propounding party a means to gain access to those native files (for example, by
supplying passwords.)
24. Parent-Child Relationships. Parent-child relationships (the association
between an attachment and its parent document or between embedded documents and
their parent) shall be preserved.
17
25. Family Groups. A document and all other documents in its attachment
range, emails with attachments and files with extracted embedded OLE documents all
constitute family groups. If any member of a family group is produced, all members of
that group must be also be produced or else logged as privileged.
26. Production Media. The producing party will use the appropriate electronic
media (CD, DVD or hard drive) for its ESI production, and will cooperate in good faith to
use the highest-capacity available media to minimize associated overhead. The
producing party will label the physical media with the producing party, production date,
media volume name, and document number range. Any replacement Production Media
will cross-reference the original Production Media, clearly identify that it is a
replacement and cross-reference the Bates Number range that is being replaced.
27. Write Protection and Preservation. All computer media that is capable of
write protection should be write-protected before production.
I. Privilege Log.
Simultaneously with each production, Defendants shall provide Plaintiffs with a
log of the documents withheld or redacted for privilege from that production, as
provided for under the Protective Order, with a log populated exclusively with the
following extracted metadata fields: Custodian, From, To, CC, BCC, Subject, File
Name, File Path, Date Created, Date Last Modified, Basis of Withholding/Redaction. If
there is more than one redaction, each redaction shall be addressed in the log with
sufficient information to allow Plaintiffs to understand the basis for the redactions.
Forwarded emails withheld from disclosure or redacted shall be separately logged. In-
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house attorney names shall be designated with an asterisk; outside counsel attorney
names will be designated with a double asterisk.
J. Limitations and Non-Waiver.
This protocol provides a general framework for the production of ESI and paper
documents on a going forward basis. The Parties and their attorneys do not intend by
this protocol to waive their rights to the attorney-client or work-product privileges, except
as specifically required herein, and any such waiver shall be strictly and narrowly
construed and shall not extend to other matters or information not specifically described
herein. All documents produced hereunder are fully protected and covered by the
Parties’ confidentiality and clawback agreements and orders of the Court effectuating
same. This section should be interpreted in the same manner as a federal court order
under FRE 502(d).
K. General Provisions.
1. Any practice or procedure set forth herein may be varied by agreement of
the Parties, and first will be confirmed in writing, where such variance is deemed
appropriate to facilitate the timely and economical exchange of electronic data or other
covered discovery materials.
2. Should any Party subsequently determine in good faith that it cannot
proceed as required by this order or that the order requires modification, the Parties will
meet and confer to resolve any dispute before seeking Court intervention.
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3. The Parties agree that e-discovery will be conducted in phases and the
Parties will meet and confer regarding discovery of data sources not listed herein.
4. Regardless of the foregoing, the Parties retain the obligation to produce,
or log for privilege, all responsive documents of which they are aware.
IT IS SO ORDERED.
Dated _______________ ________________________________ JUDGE CHRISTOPHER A.BOYKO
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Attachment A
Field Definition Doc Type
SOURCE Name of party producing the document All
CUSTODIAN Name of person or other data source (non-human) from where documents/files are produced. Where redundant names occur, individuals should be distinguished by an initial which is kept constant throughout productions (e.g., Smith, John A. and Smith, John B.)
All
BEGBATES Beginning Bates Number (production number) All
ENDBATES End Bates Number (production number) All
PGCOUNT Number of pages in the document All
FILESIZE File Size All APPLICAT Commonly associated application for the
specified file type.
All
FILEPATH Original file/path of the location where the item was located at the time of collection. This should include location, file name, and file source extension.
E-document
NATIVEFILELINK For documents provided in native format only All
TEXTPATH File path for OCR or Extracted Text files All
MSGID Email system identifier assigned by the host email system. This value is extracted from parent message during processing
PST/OST PST/OST filename E-Mail Folder Folder location of the e-mail within the E-mail
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FROM Sender E-mail TO Recipient E-mail CC Additional Recipients E-mail BCC Blind Additional Recipients E-mail SUBJECT Subject line of e-mail E-mail PARENTMSGID Where the item is an email which is a REPLY
or FORWARD, the MSGID of the original email which was REPLIED to or FORWARDED
ATTACHBATES Bates number from the first page of each attachment
BEGATTACH First Bates number of family range (i.e. Bates number of the first page of the parent e-mail)
ENDATTACH Last Bates number of family range (i.e. Bates number of the last page of the last attachment)
ATTACHCOUNT Number of attachments to an e-mail E-mail
ATTACHNAMES Names of each individual Attachment, separated by semi-colons
DATESENT (mm/dd/yyyy hh:mm:ss AM)
Date Sent E-mail
DATERCVD (mm/dd/yyyy hh:mm:ss AM)
Date Received E-mail
E-MAILDATSOR
Sent Date of the parent e-mail (most recent e-mail in a chain)
E-mail Outlook Type
Type of Outlook item, e.g., e-mail, calendar item, contact, note, task
Outlook or similar
HASHVALUE MD5 hash value All
TITLE Title provided by user within the document E-documentAUTHOR Creator of a document E-document
DATECRTD (mrn/dd/yyyy hh:mm:ss AM)
Creation Date E-document
22
FSDATECRTD File system date created E-document
LAST MODIFIED BY
Last person who modified (saved) a d t
E-document
LASTMODD (mrn/dd/yyyy hh:mm:ss
Last Modified Date E-document
FSLASTMODD File system date modified E-document
DocumentType Descriptor for the type of document: “E-document” for electronic documents not attached to e-mails; “E-mail” for all e-mails; “E-attachment” for files that were attachments to e-mails; and “Physical” for hard copy physical documents that have been scanned and converted to an
All
Importance High Importance - indicates Priority E-mail E-mail
Redacted Descriptor for documents that have been redacted. “Yes” for redacted documents; “No” for un-redacted documents.
All
RedactionReason Basis of redaction. If more than one, separate reasons by semi-colons
ProdVol Name of media that data was produced on. All
Confidentiality Confidentiality level if assigned pursuant to any applicable Protective Order or stipulation.
All
The following fields should be included if de-duplication is allowed. DuplicateFilepath Original file/path of the locations where the
duplicate items were located at the time of collection. This should include location, file name, and file source extension. Multiple values should be separated by semi-colons
E-Document
DuplicateMailFolder
Folder location of e-mail duplicates within the PST/OST; separated by semi-colons
Protocol for Plaintiff’s Participation in Technology Assisted Review
1. Lamartek/Dive Rite will provide the downloaded data from the Office 365 Microsoft
Exchange server to MCS – which is approximately 25.8GBs of data.
2. MCS will “ingest” (upload) the data into their E-Capture software tool.
3. In using the E-Capture tool, MCS will “de-duplicate” the data, but will not filter the data by
using any search terms. What remains will be the “Corpus” of documents to which predictive
coding will be applied.
4. MCS will then “ingest” (upload) the Corpus into the review platform Relativity.
5. MCS will have the Relativity platform generate a random “seed set” of documents from the
Corpus. This will be around 1200-1500 documents – but the number of documents will
depend on the size of the Corpus left after de-duplication.
6. Counsel for Dive Rite will review the documents in the seed set for relevancy by giving a
yes/no (i.e., thumbs up/thumbs down) response. Since pictures and emails with very few
words are poor examples of documents with which to train the system, counsel for Dive Rite
will also designate the “yes” as “example” or “nonexample” and will likewise designate the
“no’s” as “example” or “nonexample”. Only the documents marked as “example” will be
used to train the computer system. While training the computer system, relevant documents
that are privileged will still get a “yes” – otherwise the computer will be getting mixed
signals as to what documents are relevant (Privileged documents can be tagged as such at this
stage so counsel for Dive Rite does not have to duplicate efforts later down the road, but
tagging for “privilege” while training for relevance must not, and as is the understanding of
both parties – will not, affect the relevance training.)
a. After all the documents are tagged by counsel Dive Rite (as yes-example, yes-
nonexample, no-example, and no-nonexample), counsel for Dive Rite will do a
review of those documents for privilege as necessary and then MCS will produce all
non-privileged documents to Plaintiff’s counsel via email (or ingested into Plaintiff’s
own separate Relativity account) – along with a brief privilege log stating for each
privileged document: (1) the privilege, (2) a general description of the document –
including an indication if there was an attachment to the email and a general
description of any attachments; (3) the date sent; (4) the person who sent the
document; and (5) all persons who received the document.
b. The purpose of this exercise is so Plaintiff’s counsel can review the documents that
Dive Rite tagged to see if Plaintiff disagreed with any of those determinations.
Plaintiff and Defendant will, in good faith, work to resolve any disagreements.
7. After the review of the seed set is complete, the Relativity system will generate a batch of
documents that it (the computer) has determined were relevant based up the initial review of
the seed set. All of these documents are “supposed to be” relevant, but not all will be.
Counsel for Dive Rite will again review this batch for training purposes – and will “overturn”
certain documents, that is, give a “thumbs down” to any documents in this batch that are
deemed not relevant (basically telling the computer it was wrong for selecting that document
as relevant). Counsel will again tag documents as example/nonexample as well. Again,
during training, relevant documents that are privileged will still get a “thumbs up”.
a. Again, all documents tagged will be downloaded into PDF format and provided to
counsel for Plaintiff via email (or within Plaintiff’s own Relativity account) – along
with a privilege log. Counsel for the parties will work together in good faith to
resolve any disagreements as to whether a document is relevant or whether a
document should be tagged as example or nonexample.
8. There may be a third, fourth, or maybe more iterations of this training process – until the
Relativity system reaches the desired PRECISION rating and RECALL rating, with the
appropriate confidence intervals. The final set of documents that reach the desired precision
and recall rating will be referred to as the “Review Set.” After each iteration of training,
counsel for Dive Rite will download all tagged documents into PDF format and produce
them to counsel for Plaintiff via email (or provided to Plaintiff’s own Relativity account )
along with a privilege log.
a. The appropriate ratings and confidence intervals will be discussed further, with the
help of MCS staff, and counsel for the parties will work in good faith to agree upon
these parameters.
b. NOTE: The Review Set, in theory, contains ALL the relevant documents from the
initial Corpus of documents – and ONLY relevant documents, that is – there are no
non relevant documents in the review set. Predictive coding/technology assisted
review will not achieve perfection, but we will shoot for a reasonable and statistically
acceptable threshold. The precision rating refers to the number of relevant documents
in the Review Set compared to non-relevant documents. For example if the initial
Corpus has 1000 documents, and let’s say there are, in reality, 60 relevant documents
within that 1000. If after training, the computer selects 50 documents for the Review
set – but, after a human review, it is found that only 40 are relevant documents and 10
are non-relevant documents, then the precision rating is 80% (40/50). The Recall
rating on the other hand would be 66.7% because the computer only found 40 of the
60 relevant documents.
Also important is the Confidence Intervals for the precision rating and recall rating.
Obviously, we can’t know in advance how many relevant documents are in the entire
corpus, so we have to rely on the statistics.
The Recall rating (with a high confidence interval) is obviously much more important
to Plaintiff that the precision rating.
9. At this point, the Relativity system will generate the Review Set – that is the entire set to be
produced to Plaintiff, pending a review for privilege by counsel for Dive Rite. Counsel for
Dive Rite will conduct the review for privilege and will provide Plaintiff with a privilege log
(as described above) for any documents not produced due to privilege.
10. Often, parties will conduct some kind of quality control with regard to the predictive coding
software/technology assisted review. This can be done by taking a random sample set and
reviewing it. Counsel for the parties will talk to MCS about quality control options.
11. Estimated costs for the above services and which party is responsible for which costs will be
determined after the initial ingestion of data and de-duplication is performed by MCS upon
agreement by the parties or, if the parties cannot agree, by order of the Court.
DESK REFERENCE
with REDLINED AMENDMENTS
to the
FEDERAL RULES OF CIVIL PROCEDURE
(and Committee Notes)
CHANGES TO RULES:
1, 4, 16, 26, 30, 31, 33, 34, 37, and 55
Changes Effective December 1, 2015
Provided Courtesy of
Spangenberg Shibley & Liber, LLP
1001 Lakeside Avenue, Suite 1700
Cleveland, Ohio 44122
(216) 696-3232
www.spanglaw.com
No Claim to original U.S. or State Government works.
Spangenberg Shibley & Liber LLP
INTRODUCTION
In May 2010, the Advisory Committee on Federal Rules of Civil Procedure sponsored a Conference on Civil Litigation at Duke University for the “specific purpose of examining the state of civil litigation in federal courts and exploring better means to achieve Rule 1’s goal of the just, speedy, and inexpensive determination of every action.”1 The Advisory Committee invited 200 participants to attend the Conference consisting of trial and appellate judges from federal and state courts, plaintiff and defense attorneys, government and public interest attorneys, and a number of law professors. Over 100 papers, presentations, and empirical studies presented at the Conference can be downloaded from the U.S. Courts’ website.2 Following the Conference, the Standing Committee on Rules of Practice and Procedure and the Advisory Committee issued a joint report to Chief Justice John Roberts which summarized the conclusions from the Conference, stating: “What is needed can be described in two words – cooperation and proportionality – and one phrase – sustained, active, hands-on judicial case management.”3 Amendments to the rules were proposed, discussed, and debated over the next several years, and the final amendments were eventually approved unanimously by the Advisory Committee, the Standing Committee, the Judicial Conference of the United States, and the Supreme Court of the United States. The new rules went into effect on December 1, 2015. The most important changes are to Rules 26 and 37. The scope of discovery under Rule 26 is now that which is relevant and proportional to the needs of the case. The phrase “reasonably calculated to lead to the discovery of admissible evidence” has been deleted altogether. Rule 37 was amended to address the split between the circuit courts regarding the measures a court may employ when a party fails to preserve electronically stored information.4 In September 2015, Judge Jeffrey Sutton, Sixth Circuit Court of Appeals and the Chair of the Standing Committee on Rules of Practice and Procedure, joined a panel of federal judges to discuss the amendments to the federal rules. He said the “paradigm of American litigation has to change.” He explained that the old model of discovery was “no stone left unturned,” but in the world of ESI, “looking under every stone can get really expensive.” He further explained that the new requirement of “proportionality” to Rule 26 really means “reasonableness” and that the factors listed in the new rule are supposed to focus the courts and the parties on what is reasonable in relation to discovery. Below, we provide the “redlined” changes to the federal rules as well as the corresponding Committee Notes.
1 Memorandum from Judge David G Campbell, Chair, Advisory Committee on Federal Rules of Civil Procedure to Judge Jeffrey Sutton, Chair, Standing Committee on Rules of Practice and Procedure (June 14, 2014). www.spanglaw.com/sites/all/files/memo-from-judge-campbell-to-judge-sutton-june-14-2014.pdf 2 http://www.uscourts.gov/rules-policies/records-and-archives-rules-committees/special-projects-rules-committees/2010-civil 3 Report to the Chief Justice of the United States on the 2010 Conference on Civil Litigation. www.spanglaw.com/sites/all/files/report-to-chief-justice-following-duke-conference.pdf 4 Compare Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002) (allowing an adverse inference instruction upon a finding of negligent or grossly negligent preservation) with Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997) (“The adverse inference must be predicated on the bad faith of the party destroying the records. Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case.”).
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Rule 1. Scope and Purpose
These rules govern the procedure in all civil actions and proceedings in the United States
district courts, except as stated in Rule 81. They should be construed, and administered, and
employed by the court and the parties to secure the just, speedy, and inexpensive determination
of every action and proceeding.
Committee Note
Rule 1 is amended to emphasize that just as the court should construe and administer
these rules to secure the just, speedy, and inexpensive determination of every action, so the
parties share the responsibility to employ the rules in the same way. Most lawyers and parties
cooperate to achieve these ends. But discussions of ways to improve the administration of civil
justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that
increase cost and result in delay. Effective advocacy is consistent with — and indeed depends
upon — cooperative and proportional use of procedure.
This amendment does not create a new or independent source of sanctions. Neither does
it abridge the scope of any other of these rules.
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Rule 4. Summons
* * * * *
(m) Time Limit for Service. If a defendant is not served within 12090 days after the complaint
is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the
action without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period. This subdivision (m) does not apply to
service in a foreign country under Rule 4(f) or 4(j)(1) or to service of a notice under Rule
71.1(d)(3)(A).
* * * * *
Committee Note
Subdivision (m). The presumptive time for serving a defendant is reduced from 120
days to 90 days. This change, together with the shortened times for issuing a scheduling order
set by amended Rule 16(b)(2), will reduce delay at the beginning of litigation.
Shortening the presumptive time for service will increase the frequency of occasions to
extend the time for good cause. More time may be needed, for example, when a request to waive
service fails, a defendant is difficult to serve, or a marshal is to make service in an in forma
pauperis action.
The final sentence is amended to make it clear that the reference to Rule 4 in
Rule 71.1(d)(3)(A) does not include Rule 4(m). Dismissal under Rule 4(m) for failure to make
timely service would be inconsistent with the limits on dismissal established by Rule
71.1(i)(1)(C).
Shortening the time to serve under Rule 4(m) means that the time of the notice required
by Rule 15(c)(1)(C) for relation back is also shortened.
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Rule 16. Pretrial Conferences; Scheduling; Management
* * * * *
(b) Scheduling.
(1) Scheduling Order. Except in categories of actions exempted by local rule, the district
judge — or a magistrate judge when authorized by local rule — must issue a
scheduling order:
(A) after receiving the parties’ report under Rule 26(f); or
(B) after consulting with the parties’ attorneys and any unrepresented parties at a
scheduling conference by telephone, mail, or other means.
(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but
in any eventunless the judge finds good cause for delay, the judge must issue it within
the earlier of 12090 days after any defendant has been served with the complaint or
9060 days after any defendant has appeared.
(3) Contents of the Order.
* * * * *
(B) Permitted Contents. The scheduling order may:
* * * * *
(iii) provide for disclosure, or discovery, or preservation of electronically
stored information;
(iv) include any agreements the parties reach for asserting claims of privilege
or of protection as trial-preparation material after information is produced,
including agreements reached under Federal Rule of Evidence 502;
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(v) direct that before moving for an order relating to discovery, the movant
must request a conference with the court;
(vvi) set dates for pretrial conferences and for trial; and
(vivii) include other appropriate matters.
* * * * *
Committee Note
The provision for consulting at a scheduling conference by “telephone, mail, or other
means” is deleted. A scheduling conference is more effective if the court and parties engage in
direct simultaneous communication. The conference may be held in person, by telephone, or by
more sophisticated electronic means.
The time to issue the scheduling order is reduced to the earlier of 90 days (not 120 days)
after any defendant has been served, or 60 days (not 90 days) after any defendant has appeared.
This change, together with the shortened time for making service under Rule 4(m), will reduce
delay at the beginning of litigation. At the same time, a new provision recognizes that the court
may find good cause to extend the time to issue the scheduling order. In some cases it may be
that the parties cannot prepare adequately for a meaningful Rule 26(f) conference and then a
scheduling conference in the time allowed. Litigation involving complex issues, multiple
parties, and large organizations, public or private, may be more likely to need extra time to
establish meaningful collaboration between counsel and the people who can supply the
information needed to participate in a useful way. Because the time for the Rule 26(f)
conference is geared to the time for the scheduling conference or order, an order extending the
time for the scheduling conference will also extend the time for the Rule 26(f) conference. But
in most cases it will be desirable to hold at least a first scheduling conference in the time set by
the rule.
Three items are added to the list of permitted contents in Rule 16(b)(3)(B).
The order may provide for preservation of electronically stored information, a topic also
added to the provisions of a discovery plan under Rule 26(f)(3)(C). Parallel amendments of
Rule 37(e) recognize that a duty to preserve discoverable information may arise before an action
is filed.
The order also may include agreements incorporated in a court order under Evidence
Rule 502 controlling the effects of disclosure of information covered by attorney-client privilege
or work-product protection, a topic also added to the provisions of a discovery plan under
Rule 26(f)(3)(D).
Finally, the order may direct that before filing a motion for an order relating to discovery
the movant must request a conference with the court. Many judges who hold such conferences
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find them an efficient way to resolve most discovery disputes without the delay and burdens
attending a formal motion, but the decision whether to require such conferences is left to the
discretion of the judge in each case.
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Rule 26. Duty to Disclose; General Provisions Governing Discovery
* * * * *
(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. —
including the existence, description, nature, custody, condition, and location of any
documents or other tangible things and the identity and location of persons who know
of any discoverable matter. For good cause, the court may order discovery of any
matter relevant to the subject matter involved in the action. Relevant information need
not be admissible at the trial if the discovery appears reasonably calculated to lead to
the discovery of admissible evidence. All discovery is subject to the limitations
imposed by Rule 26(b)(2)(C).
(2) Limitations on Frequency and Extent.
* * * * *
(C) When Required. On motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by local rule if it
determines that:
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* * * * *
(iii) the burden or expense of the proposed discovery is outside the scope
permitted by Rule 26(b)(1)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.
* * * * *
(c) Protective Orders.
(1) In General. A party or any person from whom discovery is sought may move for a
protective order in the court where the action is pending — or as an alternative on
matters relating to a deposition, in the court for the district where the deposition will
be taken. The motion must include a certification that the movant has in good faith
conferred or attempted to confer with other affected parties in an effort to resolve the
dispute without court action. The court may, for good cause, issue an order to protect
a party or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following:
* * * * *
(B) specifying terms, including time and place or the allocation of expenses, for the
disclosure or discovery;
* * * * *
(d) Timing and Sequence of Discovery.
* * * * *
(2) Early Rule 34 Requests.
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(A) Time to Deliver. More than 21 days after the summons and complaint are served
on a party, a request under Rule 34 may be delivered:
(i) to that party by any other party, and
(ii) by that party to any plaintiff or to any other party that has been served.
(B) When Considered Served. The request is considered to have been served at the
first Rule 26(f) conference.
(23) Sequence. Unless, on motion, the parties stipulate or the court orders otherwise for
the parties’ and witnesses’ convenience and in the interests of justice:
(A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to delay its discovery.
* * * * *
(f) Conference of the Parties; Planning for Discovery.
* * * * *
(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:
* * * * *
(C) any issues about disclosure, or discovery, or preservation of electronically stored
information, including the form or forms in which it should be produced;
(D) any issues about claims of privilege or of protection as trial-preparation
materials, including — if the parties agree on a procedure to assert these claims
after production — whether to ask the court to include their agreement in an
order under Federal Rule of Evidence 502;
* * * * *
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Committee Note
Rule 26(b)(1) is changed in several ways.
Information is discoverable under revised Rule 26(b)(1) if it is relevant to any party’s
claim or defense and is proportional to the needs of the case. The considerations that bear on
proportionality are moved from present Rule 26(b)(2)(C)(iii), slightly rearranged and with one
addition.
Most of what now appears in Rule 26(b)(2)(C)(iii) was first adopted in 1983. The 1983
provision was explicitly adopted as part of the scope of discovery defined by Rule 26(b)(1).
Rule 26(b)(1) directed the court to limit the frequency or extent of use of discovery if it
determined that “the discovery is unduly burdensome or expensive, taking into account the needs
of the case, the amount in controversy, limitations on the parties’ resources, and the importance
of the issues at stake in the litigation.” At the same time, Rule 26(g) was added. Rule 26(g)
provided that signing a discovery request, response, or objection certified that the request,
response, or objection was “not unreasonable or unduly burdensome or expensive, given the
needs of the case, the discovery already had in the case, the amount in controversy, and the
importance of the issues at stake in the litigation.” The parties thus shared the responsibility to
honor these limits on the scope of discovery.
The 1983 Committee Note stated that the new provisions were added “to deal with the
problem of over-discovery. The objective is to guard against redundant or disproportionate
discovery by giving the court authority to reduce the amount of discovery that may be directed to
matters that are otherwise proper subjects of inquiry. The new sentence is intended to encourage
judges to be more aggressive in identifying and discouraging discovery overuse. The grounds
mentioned in the amended rule for limiting discovery reflect the existing practice of many courts
in issuing protective orders under Rule 26(c). . . . On the whole, however, district judges have
been reluctant to limit the use of the discovery devices.”
The clear focus of the 1983 provisions may have been softened, although inadvertently,
by the amendments made in 1993. The 1993 Committee Note explained: “[F]ormer paragraph
(b)(1) [was] subdivided into two paragraphs for ease of reference and to avoid renumbering of
paragraphs (3) and (4).” Subdividing the paragraphs, however, was done in a way that could be
read to separate the proportionality provisions as “limitations,” no longer an integral part of the
(b)(1) scope provisions. That appearance was immediately offset by the next statement in the
Note: “Textual changes are then made in new paragraph (2) to enable the court to keep tighter
rein on the extent of discovery.”
The 1993 amendments added two factors to the considerations that bear on limiting
discovery: whether “the burden or expense of the proposed discovery outweighs its likely
benefit,” and “the importance of the proposed discovery in resolving the issues.” Addressing
these and other limitations added by the 1993 discovery amendments, the Committee Note stated
that “[t]he revisions in Rule 26(b)(2) are intended to provide the court with broader discretion to
impose additional restrictions on the scope and extent of discovery . . . .”
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The relationship between Rule 26(b)(1) and (2) was further addressed by an amendment
made in 2000 that added a new sentence at the end of (b)(1): “All discovery is subject to the
limitations imposed by Rule 26(b)(2)(i), (ii), and (iii)[now Rule 26(b)(2)(C)].” The Committee
Note recognized that “[t]hese limitations apply to discovery that is otherwise within the scope of
subdivision (b)(1).” It explained that the Committee had been told repeatedly that courts were
not using these limitations as originally intended. “This otherwise redundant cross-reference has
been added to emphasize the need for active judicial use of subdivision (b)(2) to control
excessive discovery.”
The present amendment restores the proportionality factors to their original place in
defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties
to consider these factors in making discovery requests, responses, or objections.
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.
The parties may begin discovery without a full appreciation of the factors that bear on
proportionality. A party requesting discovery, for example, may have little information about the
burden or expense of responding. A party requested to provide discovery may have little
information about the importance of the discovery in resolving the issues as understood by the
requesting party. Many of these uncertainties should be addressed and reduced in the parties’
Rule 26(f) conference and in scheduling and pretrial conferences with the court. But if the
parties continue to disagree, the discovery dispute could be brought before the court and the
parties’ responsibilities would remain as they have been since 1983. A party claiming undue
burden or expense ordinarily has far better information — perhaps the only information — with
respect to that part of the determination. A party claiming that a request is important to resolve
the issues should be able to explain the ways in which the underlying information bears on the
issues as that party understands them. The court’s responsibility, using all the information
provided by the parties, is to consider these and all the other factors in reaching a case-specific
determination of the appropriate scope of discovery.
The direction to consider the parties’ relative access to relevant information adds new
text to provide explicit focus on considerations already implicit in present Rule 26(b)(2)(C)(iii).
Some cases involve what often is called “information asymmetry.” One party — often an
individual plaintiff — may have very little discoverable information. The other party may have
vast amounts of information, including information that can be readily retrieved and information
that is more difficult to retrieve. In practice these circumstances often mean that the burden of
responding to discovery lies heavier on the party who has more information, and properly so.
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Restoring proportionality as an express component of the scope of discovery warrants
repetition of parts of the 1983 and 1993 Committee Notes that must not be lost from sight. The
1983 Committee Note explained that “[t]he rule contemplates greater judicial involvement in the
discovery process and thus acknowledges the reality that it cannot always operate on a self-
regulating basis.” The 1993 Committee Note further observed that “[t]he information explosion
of recent decades has greatly increased both the potential cost of wide-ranging discovery and the
potential for discovery to be used as an instrument for delay or oppression.” What seemed an
explosion in 1993 has been exacerbated by the advent of e-discovery. The present amendment
again reflects the need for continuing and close judicial involvement in the cases that do not
yield readily to the ideal of effective party management. It is expected that discovery will be
effectively managed by the parties in many cases. But there will be important occasions for
judicial management, both when the parties are legitimately unable to resolve important
differences and when the parties fall short of effective, cooperative management on their own.
It also is important to repeat the caution that the monetary stakes are only one factor, to
be balanced against other factors. The 1983 Committee Note recognized “the significance of the
substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule
recognizes that many cases in public policy spheres, such as employment practices, free speech,
and other matters, may have importance far beyond the monetary amount involved.” Many other
substantive areas also may involve litigation that seeks relatively small amounts of money, or no
money at all, but that seeks to vindicate vitally important personal or public values.
So too, consideration of the parties’ resources does not foreclose discovery requests
addressed to an impecunious party, nor justify unlimited discovery requests addressed to a
wealthy party. The 1983 Committee Note cautioned that “[t]he court must apply the standards in
an even-handed manner that will prevent use of discovery to wage a war of attrition or as a
device to coerce a party, whether financially weak or affluent.”
The burden or expense of proposed discovery should be determined in a realistic way. This
includes the burden or expense of producing electronically stored information. Computer-based
methods of searching such information continue to develop, particularly for cases involving large
volumes of electronically stored information. Courts and parties should be willing to consider the
opportunities for reducing the burden or expense of discovery as reliable means of searching
electronically stored information become available.
A portion of present Rule 26(b)(1) is omitted from the proposed revision. After allowing
discovery of any matter relevant to any party’s claim or defense, the present rule adds:
“including the existence, description, nature, custody, condition, and location of any documents
or other tangible things and the identity and location of persons who know of any discoverable
matter.” Discovery of such matters is so deeply entrenched in practice that it is no longer
necessary to clutter the long text of Rule 26 with these examples. The discovery identified in
these examples should still be permitted under the revised rule when relevant and proportional to
the needs of the case. Framing intelligent requests for electronically stored information, for
example, may require detailed information about another party’s information systems and other
information resources.
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The amendment deletes the former provision authorizing the court, for good cause, to
order discovery of any matter relevant to the subject matter involved in the action. The
Committee has been informed that this language is rarely invoked. Proportional discovery
relevant to any party’s claim or defense suffices, given a proper understanding of what is
relevant to a claim or defense. The distinction between matter relevant to a claim or defense and
matter relevant to the subject matter was introduced in 2000. The 2000 Note offered three
examples of information that, suitably focused, would be relevant to the parties’ claims or
defenses. The examples were “other incidents of the same type, or involving the same product”;
“information about organizational arrangements or filing systems”; and “information that could
be used to impeach a likely witness.” Such discovery is not foreclosed by the amendments.
Discovery that is relevant to the parties’ claims or defenses may also support amendment of the
pleadings to add a new claim or defense that affects the scope of discovery.
The former provision for discovery of relevant but inadmissible information that appears
“reasonably calculated to lead to the discovery of admissible evidence” is also deleted. The
phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee
Note to the 2000 amendments observed, use of the “reasonably calculated” phrase to define the
scope of discovery “might swallow any other limitation on the scope of discovery.” The 2000
amendments sought to prevent such misuse by adding the word “Relevant” at the beginning of
the sentence, making clear that “‘relevant’ means within the scope of discovery as defined in this
subdivision . . . .” The “reasonably calculated” phrase has continued to create problems,
however, and is removed by these amendments. It is replaced by the direct statement that
“Information within this scope of discovery need not be admissible in evidence to be
discoverable.” Discovery of nonprivileged information not admissible in evidence remains
available so long as it is otherwise within the scope of discovery.
Rule 26(b)(2)(C)(iii) is amended to reflect the transfer of the considerations that bear on
proportionality to Rule 26(b)(1). The court still must limit the frequency or extent of proposed
discovery, on motion or on its own, if it is outside the scope permitted by Rule 26(b)(1).
Rule 26(c)(1)(B) is amended to include an express recognition of protective orders that
allocate expenses for disclosure or discovery. Authority to enter such orders is included in the
present rule, and courts already exercise this authority. Explicit recognition will forestall the
temptation some parties may feel to contest this authority. Recognizing the authority does not
imply that cost-shifting should become a common practice. Courts and parties should continue
to assume that a responding party ordinarily bears the costs of responding.
Rule 26(d)(2) is added to allow a party to deliver Rule 34 requests to another party more
than 21 days after that party has been served even though the parties have not yet had a required
Rule 26(f) conference. Delivery may be made by any party to the party that has been served, and
by that party to any plaintiff and any other party that has been served. Delivery does not count as
service; the requests are considered to be served at the first Rule 26(f) conference. Under Rule
34(b)(2)(A) the time to respond runs from service. This relaxation of the discovery moratorium
is designed to facilitate focused discussion during the Rule 26(f) conference. Discussion at the
conference may produce changes in the requests. The opportunity for advance scrutiny of
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requests delivered before the Rule 26(f) conference should not affect a decision whether to allow
additional time to respond.
Rule 26(d)(3) is renumbered and amended to recognize that the parties may stipulate to
case-specific sequences of discovery.
Rule 26(f)(3) is amended in parallel with Rule 16(b)(3) to add two items to the discovery
plan — issues about preserving electronically stored information and court orders under
Evidence Rule 502.
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Rule 30. Depositions by Oral Examination
(a) When a Deposition May Be Taken.
* * * * *
(2) With Leave. A party must obtain leave of court, and the court must grant leave to the
extent consistent with Rule 26(b)(1) and (2):
* * * * *
(d) Duration; Sanction; Motion to Terminate or Limit.
(1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited
to one day of 7 hours. The court must allow additional time consistent with
Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent,
another person, or any other circumstance impedes or delays the examination.
* * * * *
Committee Note
Rule 30 is amended in parallel with Rules 31 and 33 to reflect the recognition of
proportionality in Rule 26(b)(1).
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Rule 31. Depositions by Written Questions
(a) When a Deposition May Be Taken.
* * * * *
(2) With Leave. A party must obtain leave of court, and the court must grant leave to the
extent consistent with Rule 26(b)(1) and (2):
* * * * *
Committee Note
Rule 31 is amended in parallel with Rules 30 and 33 to reflect the recognition of
proportionality in Rule 26(b)(1).
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Rule 33. Interrogatories to Parties
(a) In General.
(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on
any other party no more than 25 written interrogatories, including all discrete subparts.
Leave to serve additional interrogatories may be granted to the extent consistent with
Rule 26(b)(1) and (2).
* * * * *
Committee Note
Rule 33 is amended in parallel with Rules 30 and 31 to reflect the recognition of
proportionality in Rule 26(b)(1).
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Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things,
or Entering onto Land, for Inspection and Other Purposes
* * * * *
(b) Procedure.
* * * * *
(2) Responses and Objections.
(A) Time to Respond. The party to whom the request is directed must respond in
writing within 30 days after being served or — if the request was delivered under
Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A
shorter or longer time may be stipulated to under Rule 29 or be ordered by the
court.
(B) Responding to Each Item. For each item or category, the response must either
state that inspection and related activities will be permitted as requested or state
an objection with specificity the grounds for objecting to the request, including
the reasons. The responding party may state that it will produce copies of
documents or of electronically stored information instead of permitting
inspection. The production must then be completed no later than the time for
inspection specified in the request or another reasonable time specified in the
response.
(C) Objections. An objection must state whether any responsive materials are being
withheld on the basis of that objection. An objection to part of a request must
specify the part and permit inspection of the rest.
* * * * *
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Committee Note
Several amendments are made in Rule 34, aimed at reducing the potential to impose
unreasonable burdens by objections to requests to produce.
Rule 34(b)(2)(A) is amended to fit with new Rule 26(d)(2). The time to respond to a
Rule 34 request delivered before the parties’ Rule 26(f) conference is 30 days after the first Rule
26(f) conference.
Rule 34(b)(2)(B) is amended to require that objections to Rule 34 requests be stated with
specificity. This provision adopts the language of Rule 33(b)(4), eliminating any doubt that less
specific objections might be suitable under Rule 34. The specificity of the objection ties to the
new provision in Rule 34(b)(2)(C) directing that an objection must state whether any responsive
materials are being withheld on the basis of that objection. An objection may state that a request
is overbroad, but if the objection recognizes that some part of the request is appropriate the
objection should state the scope that is not overbroad. Examples would be a statement that the
responding party will limit the search to documents or electronically stored information created
within a given period of time prior to the events in suit, or to specified sources. When there is
such an objection, the statement of what has been withheld can properly identify as matters
“withheld” anything beyond the scope of the search specified in the objection.
Rule 34(b)(2)(B) is further amended to reflect the common practice of producing copies
of documents or electronically stored information rather than simply permitting inspection. The
response to the request must state that copies will be produced. The production must be
completed either by the time for inspection specified in the request or by another reasonable time
specifically identified in the response. When it is necessary to make the production in stages the
response should specify the beginning and end dates of the production.
Rule 34(b)(2)(C) is amended to provide that an objection to a Rule 34 request must state
whether anything is being withheld on the basis of the objection. This amendment should end
the confusion that frequently arises when a producing party states several objections and still
produces information, leaving the requesting party uncertain whether any relevant and
responsive information has been withheld on the basis of the objections. The producing party
does not need to provide a detailed description or log of all documents withheld, but does need to
alert other parties to the fact that documents have been withheld and thereby facilitate an
informed discussion of the objection. 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
“withheld.”
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Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
(a) Motion for an Order Compelling Disclosure or Discovery.
* * * * *
(3) Specific Motions.
* * * * *
(B) To Compel a Discovery Response. A party seeking discovery may move for an
order compelling an answer, designation, production, or inspection. This motion
may be made if:
* * * * *
(iv) a party fails to produce documents or fails to respond that inspection will be
permitted — or fails to permit inspection — as requested under Rule 34.
* * * * *
(e) Failure to ProvidePreserve Electronically Stored Information. Absent exceptional
circumstances, a court may not impose sanctions under these rules on a party for failing to
provide electronically stored information lost as a result of the routine, good-faith operation
of an electronic information system.If electronically stored information that should have
been preserved in the anticipation or conduct of litigation is lost because a party failed to
take reasonable steps to preserve it, and it cannot be restored or replaced through additional
discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order
measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the
information’s use in the litigation may:
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(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to
the party; or
(C) dismiss the action or enter a default judgment.
* * * * *
Committee Note
Subdivision (a). Rule 37(a)(3)(B)(iv) is amended to reflect the common practice of
producing copies of documents or electronically stored information rather than simply permitting
inspection. This change brings item (iv) into line with paragraph (B), which provides a motion
for an order compelling “production, or inspection.”
Subdivision (e). Present Rule 37(e), adopted in 2006, provides: “Absent exceptional
circumstances, a court may not impose sanctions under these rules on a party for failing to
provide electronically stored information lost as a result of the routine, good-faith operation of an
electronic information system.” This limited rule has not adequately addressed the serious
problems resulting from the continued exponential growth in the volume of such information.
Federal circuits have established significantly different standards for imposing sanctions or
curative measures on parties who fail to preserve electronically stored information. These
developments have caused litigants to expend excessive effort and money on preservation in
order to avoid the risk of severe sanctions if a court finds they did not do enough.
New Rule 37(e) replaces the 2006 rule. It authorizes and specifies measures a court may
employ if information that should have been preserved is lost, and specifies the findings
necessary to justify these measures. It therefore forecloses reliance on inherent authority or state
law to determine when certain measures should be used. The rule does not affect the validity of
an independent tort claim for spoliation if state law applies in a case and authorizes the claim.
The new rule applies only to electronically stored information, also the focus of the 2006
rule. It applies only when such information is lost. Because electronically stored information
often exists in multiple locations, loss from one source may often be harmless when substitute
information can be found elsewhere.
The new rule applies only if the lost information should have been preserved in the
anticipation or conduct of litigation and the party failed to take reasonable steps to preserve it.
Many court decisions hold that potential litigants have a duty to preserve relevant information
when litigation is reasonably foreseeable. Rule 37(e) is based on this common-law duty; it does
not attempt to create a new duty to preserve. The rule does not apply when information is lost
before a duty to preserve arises.
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In applying the rule, a court may need to decide whether and when a duty to preserve
arose. Courts should consider the extent to which a party was on notice that litigation was likely
and that the information would be relevant. A variety of events may alert a party to the prospect
of litigation. Often these events provide only limited information about that prospective
litigation, however, so that the scope of information that should be preserved may remain
uncertain. It is important not to be blinded to this reality by hindsight arising from familiarity
with an action as it is actually filed.
Although the rule focuses on the common-law obligation to preserve in the anticipation
or conduct of litigation, courts may sometimes consider whether there was an independent
requirement that the lost information be preserved. Such requirements arise from many sources
— statutes, administrative regulations, an order in another case, or a party’s own information-
retention protocols. The court should be sensitive, however, to the fact that such independent
preservation requirements may be addressed to a wide variety of concerns unrelated to the
current litigation. The fact that a party had an independent obligation to preserve information
does not necessarily mean that it had such a duty with respect to the litigation, and the fact that
the party failed to observe some other preservation obligation does not itself prove that its efforts
to preserve were not reasonable with respect to a particular case.
The duty to preserve may in some instances be triggered or clarified by a court order in
the case. Preservation orders may become more common, in part because Rules 16(b)(3)(B)(iii)
and 26(f)(3)(C) are amended to encourage discovery plans and orders that address preservation.
Once litigation has commenced, if the parties cannot reach agreement about preservation issues,
promptly seeking judicial guidance about the extent of reasonable preservation may be
important.
The rule applies only if the information was lost because the party failed to take
reasonable steps to preserve the information. Due to the ever-increasing volume of electronically
stored information and the multitude of devices that generate such information, perfection in
preserving all relevant electronically stored information is often impossible. As under the
current rule, the routine, good-faith operation of an electronic information system would be a
relevant factor for the court to consider in evaluating whether a party failed to take reasonable
steps to preserve lost information, although the prospect of litigation may call for reasonable
steps to preserve information by intervening in that routine operation. This rule recognizes that
“reasonable steps” to preserve suffice; it does not call for perfection. The court should be
sensitive to the party’s sophistication with regard to litigation in evaluating preservation efforts;
some litigants, particularly individual litigants, may be less familiar with preservation obligations
than others who have considerable experience in litigation.
Because the rule calls only for reasonable steps to preserve, it is inapplicable when the
loss of information occurs despite the party’s reasonable steps to preserve. For example, the
information may not be in the party’s control. Or information the party has preserved may be
destroyed by events outside the party’s control — the computer room may be flooded, a “cloud”
service may fail, a malign software attack may disrupt a storage system, and so on. Courts may,
however, need to assess the extent to which a party knew of and protected against such risks.
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Another factor in evaluating the reasonableness of preservation efforts is proportionality.
The court should be sensitive to party resources; aggressive preservation efforts can be extremely
costly, and parties (including governmental parties) may have limited staff and resources to
devote to those efforts. A party may act reasonably by choosing a less costly form of
information preservation, if it is substantially as effective as more costly forms. It is important
that counsel become familiar with their clients’ information systems and digital data — including
social media — to address these issues. A party urging that preservation requests are
disproportionate may need to provide specifics about these matters in order to enable meaningful
discussion of the appropriate preservation regime.
When a party fails to take reasonable steps to preserve electronically stored information
that should have been preserved in the anticipation or conduct of litigation, and the information
is lost as a result, Rule 37(e) directs that the initial focus should be on whether the lost
information can be restored or replaced through additional discovery. Nothing in the rule limits
the court’s powers under Rules 16 and 26 to authorize additional discovery. Orders under Rule
26(b)(2)(B) regarding discovery from sources that would ordinarily be considered inaccessible or
under Rule 26(c)(1)(B) on allocation of expenses may be pertinent to solving such problems. If
the information is restored or replaced, no further measures should be taken. At the same time, it
is important to emphasize that efforts to restore or replace lost information through discovery
should be proportional to the apparent importance of the lost information to claims or defenses in
the litigation. For example, substantial measures should not be employed to restore or replace
information that is marginally relevant or duplicative.
Subdivision (e)(1). This subdivision applies only if information should have been
preserved in the anticipation or conduct of litigation, a party failed to take reasonable steps to
preserve the information, information was lost as a result, and the information could not be
restored or replaced by additional discovery. In addition, a court may resort to (e)(1) measures
only “upon finding prejudice to another party from loss of the information.” An evaluation of
prejudice from the loss of information necessarily includes an evaluation of the information’s
importance in the litigation.
The rule does not place a burden of proving or disproving prejudice on one party or the
other. Determining the content of lost information may be a difficult task in some cases, and
placing the burden of proving prejudice on the party that did not lose the information may be
unfair. In other situations, however, the content of the lost information may be fairly evident, the
information may appear to be unimportant, or the abundance of preserved information may
appear sufficient to meet the needs of all parties. Requiring the party seeking curative measures
to prove prejudice may be reasonable in such situations. The rule leaves judges with discretion
to determine how best to assess prejudice in particular cases.
Once a finding of prejudice is made, the court is authorized to employ measures “no
greater than necessary to cure the prejudice.” The range of such measures is quite broad if they
are necessary for this purpose. There is no all-purpose hierarchy of the severity of various
measures; the severity of given measures must be calibrated in terms of their effect on the
particular case. But authority to order measures no greater than necessary to cure prejudice does
not require the court to adopt measures to cure every possible prejudicial effect. Much is
entrusted to the court’s discretion.
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In an appropriate case, it may be that serious measures are necessary to cure prejudice
found by the court, such as forbidding the party that failed to preserve information from putting
on certain evidence, permitting the parties to present evidence and argument to the jury regarding
the loss of information, or giving the jury instructions to assist in its evaluation of such evidence
or argument, other than instructions to which subdivision (e)(2) applies. Care must be taken,
however, to ensure that curative measures under subdivision (e)(1) do not have the effect of
measures that are permitted under subdivision (e)(2) only on a finding of intent to deprive
another party of the lost information’s use in the litigation. An example of an inappropriate
(e)(1) measure might be an order striking pleadings related to, or precluding a party from
offering any evidence in support of, the central or only claim or defense in the case. On the other
hand, it may be appropriate to exclude a specific item of evidence to offset prejudice caused by
failure to preserve other evidence that might contradict the excluded item of evidence.
Subdivision (e)(2). This subdivision authorizes courts to use specified and very severe
measures to address or deter failures to preserve electronically stored information, but only on
finding that the party that lost the information acted with the intent to deprive another party of
the information’s use in the litigation. It is designed to provide a uniform standard in federal
court for use of these serious measures when addressing failure to preserve electronically stored
information. It rejects cases such as Residential Funding Corp. v. DeGeorge Financial Corp.,
306 F.3d 99 (2d Cir. 2002), that authorize the giving of adverse-inference instructions on a
finding of negligence or gross negligence.
Adverse-inference instructions were developed on the premise that a party’s intentional
loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference
that the evidence was unfavorable to the party responsible for loss or destruction of the evidence.
Negligent or even grossly negligent behavior does not logically support that inference.
Information lost through negligence may have been favorable to either party, including the party
that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways
the lost information never would have. The better rule for the negligent or grossly negligent loss
of electronically stored information is to preserve a broad range of measures to cure prejudice
caused by its loss, but to limit the most severe measures to instances of intentional loss or
destruction.
Similar reasons apply to limiting the court’s authority to presume or infer that the lost
information was unfavorable to the party who lost it when ruling on a pretrial motion or
presiding at a bench trial. Subdivision (e)(2) limits the ability of courts to draw adverse
inferences based on the loss of information in these circumstances, permitting them only when a
court finds that the information was lost with the intent to prevent its use in litigation.
Subdivision (e)(2) applies to jury instructions that permit or require the jury to presume
or infer that lost information was unfavorable to the party that lost it. Thus, it covers any
instruction that directs or permits the jury to infer from the loss of information that it was in fact
unfavorable to the party that lost it. The subdivision does not apply to jury instructions that do
not involve such an inference. For example, subdivision (e)(2) would not prohibit a court from
allowing the parties to present evidence to the jury concerning the loss and likely relevance of
Spangenberg Shibley & Liber LLP Page 24
information and instructing the jury that it may consider that evidence, along with all the other
evidence in the case, in making its decision. These measures, which would not involve
instructing a jury it may draw an adverse inference from loss of information, would be available
under subdivision (e)(1) if no greater than necessary to cure prejudice. In addition, subdivision
(e)(2) does not limit the discretion of courts to give traditional missing evidence instructions
based on a party’s failure to present evidence it has in its possession at the time of trial.
Subdivision (e)(2) requires a finding that the party acted with the intent to deprive
another party of the information’s use in the litigation. This finding may be made by the court
when ruling on a pretrial motion, when presiding at a bench trial, or when deciding whether to
give an adverse inference instruction at trial. If a court were to conclude that the intent finding
should be made by a jury, the court’s instruction should make clear that the jury may infer from
the loss of the information that it was unfavorable to the party that lost it only if the jury first
finds that the party acted with the intent to deprive another party of the information’s use in the
litigation. If the jury does not make this finding, it may not infer from the loss that the
information was unfavorable to the party that lost it.
Subdivision (e)(2) does not include a requirement that the court find prejudice to the
party deprived of the information. This is because the finding of intent required by the
subdivision can support not only an inference that the lost information was unfavorable to the
party that intentionally destroyed it, but also an inference that the opposing party was prejudiced
by the loss of information that would have favored its position. Subdivision (e)(2) does not
require any further finding of prejudice.
Courts should exercise caution, however, in using the measures specified in (e)(2).
Finding an intent to deprive another party of the lost information’s use in the litigation does not
require a court to adopt any of the measures listed in subdivision (e)(2). The remedy should fit
the wrong, and the severe measures authorized by this subdivision should not be used when the
information lost was relatively unimportant or lesser measures such as those specified in
subdivision (e)(1) would be sufficient to redress the loss.
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Rule 55. Default; Default Judgment
* * * * *
(c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of
default for good cause, and it may set aside a final default judgment under Rule 60(b).
* * * * *
Committee Note
Rule 55(c) is amended to make plain the interplay between Rules 54(b), 55(c), and 60(b).
A default judgment that does not dispose of all of the claims among all parties is not a final
judgment unless the court directs entry of final judgment under Rule 54(b). Until final judgment
is entered, Rule 54(b) allows revision of the default judgment at any time. The demanding
standards set by Rule 60(b) apply only in seeking relief from a final judgment.
Spangenberg Shibley & Liber LLP Page 26
ABOUT SPANGENBERG SHIBLEY & LIBER LLP
Our team of lawyers handles a broad range of cases involving
catastrophic personal injury and wrongful death, dangerous products,
pharmaceutical and defective medical devices, medical malpractice,
workplace injury, nursing home abuse and injuries, violations of civil
rights, property damage and insurance coverage. We also prosecute
consumer class action cases involving fraudulent marketing and
consumer practices. We are often selected by federal judges as lead
counsel in nationwide cases centralized in multi-district litigation.
Our Business Litigation Group litigates cases for large and small
businesses often on contingent fee arrangements. Our lawyers work in
partnership with business, corporate, and bankruptcy counsel to
seamlessly manage the litigation process.
For more information or to contact a Spangenberg attorney, please visit
www.spanglaw.com/referrals or call 216.696.3232.