The latest amendments to the U.S. Federal Rules for Civil Procedure (FRCP) have been in effect since December 2015, and courts have not hesitated to employ them in rulings on preservation, proportionality, and specificity.
In one recent example, NuVasive v. Madsen Med. (S.D. Cal. Jan. 26, 2016), a court in the Southern District of California cited amended Rule 37(e) in allowing the plaintiff to vacate a prior order that imposed an adverse inference for failing to preserve text messages. Under the previous Rule 37(e), the court said that NuVasive had spoliated evidence by not saving the text messages of four employees who were key to the case, and it denied NuVasive when it tried to make a similar claim against Madsen.
But in the prior ruling, the court did not say that NuVasive had intentionally failed to preserve the text messages. As the court noted in its January ruling, intention matters under the new rules. As NuVasive argued, the amended rule allows an adverse inference for failure to preserve ESI “only upon the finding that the [spoliating] party acted with the intent to deprive another party of the information’s use in the litigation.”
The court found NuVasive at fault for not enforcing compliance with the litigation hold. The court’s January ruling explained: “The record does not support a finding of intentional spoliation by NuVasive. Therefore, under Rule 37(e), as amended, it would not be proper for the Court to give the adverse inference instruction.”
The FRCP amendments weren’t ignored by the Supreme Court either. In the court’s 2015 “Report on the Federal Judiciary,” Chief Justice John Roberts addressed the changes. Discussing proportionality, he wrote that [Rule 26(b)(1)] “states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery.”
The federal court of the District of Colorado must have taken note of Justice Roberts’ writings because it referenced them in its decision in Kissing Camels Surgery Center v. Centura Health Corporation, (D. Colo., Jan. 22, 2016).
The case, which concerned an antitrust dispute for ambulatory surgery centers, examined both sides’ production requests after the defendant asked the plaintiff to go through the terabyte of data it had produced to identify which documents were responsive to its requests. However, the court did not appreciate the request.
First, the court said that being “mired in continuous disputes over the appropriateness of discovery served and the adequacy of responses” for “six months ... is not what the Federal Rules intended.” Thus, the court’s ruling called the defendant’s requests “omnibus requests” and said that they were “improper on their face.” It also criticized the defendant for not trying to tailor definitions of requests to the specific case as well, often including boilerplate terms such as “including, without limitation, any [long list], or any other person(s) acting or purporting to act with or on behalf of the foregoing.”
But the court called the plaintiffs’ objections to this discovery “no better.” The court scolded the plaintiffs for using boilerplate of their own and ignoring specificity as required by the amended Rule 34. The court wrote, “It appears that Plaintiffs’ response simply points generally to the production of 1 terabyte of information − conservatively, millions of pages − without providing any type of guidance to Defendants as to where in the production such responsive documents are to be found.”