Amending the Federal eDiscovery Rules: Tackling the Comments on 26(b) and 37(e)

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By Tera E. Brostoff  

Nov. 19 --In a Nov. 14 webinar titled “Amending the Federal eDiscovery Rules: Fallout From the First Public Hearing,” moderator and Bloomberg BNA's Digital Discovery and e-Evidence Advisory Board Chair Ronald J. Hedges led a discussion on the proposed amendments to the Federal Rules of Civil Procedure and the accompanying comments and hearing testimony. Thomas Y. Allman, Chair Emeritus of the Steering Committee for the Sedona Conference® Working Group 1, Magistrate Judge Craig B. Shaffer of the District of Colorado, and Kenneth J. Withers, Deputy Executive Director of the Sedona Conference®, participated in the discussion

Hedges posed the question, “looking at the logic and experience test that helped drive the federal rules coming from case management and case law under the 2006 amendments, have we seen the genesis for the proposed amendments in the case law or case management, or are we looking at broader themes?”

The panelists discussed the intended effects of the amendments, as well as the anticipated practical effects they would have.

Changes to Rule 26 Garnered the Most Attention

Withers led the discussion of the non-sanction related parts of the proposed amendments, focusing heavily on the proposed changes to Rule 26, Duty to Disclose. Withers explained the two biggest changes to Rule 26 are the addition of a proportionality requirement to the definition of the scope of discovery in Rule 26(b)(1), as well as the deletion of the “reasonably calculated” language regarding discoverable information.

Withers said there have been a lot of comments that the “reasonably calculated” language omission is considered by some to be a major change in the scope of discovery. He noted that for many years, the practice has been to argue that the scope of discovery includes any information that could be reasonably calculated to lead to admissible discovery.

“But the actual language, and much of the case law that has considered this explicitly, has noted that the scope of discovery is still based on relevance,” Withers explained. “My personal view is this streamlined definition does nothing to change the law.”

According to Withers, the amendment makes the language a bit clearer that information sought must be within the scope of discovery, and, in addition to being relevant, it must be proportional.

Allman, who attended and testified at the first public hearing on the proposed amendments on Nov. 7, weighed in on the comments to Rule 26.

“Have no doubt about it, this is the single most vehemently opposed provision of any of the proposed amendments,” Allman said. “Lawyers whose clients have an asymmetric need for information argued over and over again that the changes in 26(b)(1) would deny them discovery.”

Allman said that the witnesses at the hearing argued that the changes unfairly shifted the burden of proving discovery would be proportional to the plaintiffs. According to Allman, when the advisory committee members asked the witnesses how the amendments would shift the burden, the testifying individuals had a difficult time giving an answer.

Withers noted the proportionality calculus includes not only cost, but also the importance of the issues at stake, the importance of the proposed discovery in resolving those issues, and other factors.

“For instance, if the litigation is seeking an injunction where there is no value in strict dollar terms, the calculation is not going to be as simple as deciding what is the potential recovery versus the cost of discovery,” Withers said. “It's going to be a far more nuanced calculation, which the Sedona Conference® has addressed in its commentary on proportionality.”

Hedges asked Judge Shaffer if he would be altering his calculus in determining whether requested information was discoverable by requiring parties to justify their requests.

“What will happen is that lawyers will continue to litigate as they always have, and we will continue to see discovery requests with boilerplate objections,” Shaffer said. “We have a well-established line of cases that says a boilerplate objection, without some supporting factual basis, is of no significance … What you may start to see is that the lawyers who previously objected on the grounds that a request would be overly broad or unduly burdensome will start to object on proportionality grounds.”

Shaffer stated he did not believe the proposed change materially altered the matrix the court must apply to evaluate the merits of a particular objection. He noted that the changes to Rule 26 emphasize that lawyers cannot continue to pursue discovery based on old habits, and that going forward, the amendments force attorneys to take a more focused approach to discovery.

Discovery Conferences, Limit Amendments Discussed

The lecturers also discussed the amendment to Rule 26(c), Protective Orders, which, for the first time, includes the allocation of expenses as one of the items a judge may order in modifying the terms of discovery. In addition, Rule 26(d) has been amended to allow parties to exchange discovery requests early, before the 26(f) conference. According to the panelists, the intention in allowing for these earlier proposals for discovery requests is to have a much more complete 26(f) discussion of what the discovery plan will be.

Shaffer commented that a lawyer who takes full advantage of these proposed revisions will be miles ahead of an opponent who continues to treat the 26(f) conference as an administrative hurdle he must get over to commence litigation. These proposed changes will be invaluable to attorneys who see the tactical advantages of preparing for discovery early, Shaffer said.

Rule 26(f) has also been modified to include specific mention of preservation and of Federal Rule of Evidence 502. Rule 16 also would include a provision mentioning preservation and FRE 502, and would, if approved, include a clause that would allow a court to condition the filing of any discovery-related motion on a conference with the court.

The lecturers also briefly discussed the proposed limits in Rule 30, 33, 36, 4(m), and 16(2). Shaffer stated the Rule 30 presumptive limit of 10 depositions was likely dropped to five depositions in an effort to send a signal consistent with some of the other proposed amendments.

“We want lawyers and parties to be thinking about efficiency and cost-effectiveness,” Shaffer said. “In big cases, parties will almost certainly stipulate to more than five depositions, and the proposed rules allow for that.”

Lecturers Tackle Amendments to 37(e)

The panelists shifted the topic to the existing Rule 37(e), the proposed amendments to the rule, and the comments elicited at the hearing and in writing.

Withers led the discussion by stating the existing Rule 37(e), as amended in 2006, was intended to protect the routine operation of electronic records information systems so that companies and parties could operate defensible deletion policies in good faith, knowing the courts would allow them to keep those procedures in place.

“In reality, what happened was that most courts zeroed in on the comment language 'good faith,' and held that all the information systems would need to be turned off to avoid sanctions,” Withers said. “Courts were essentially enforcing the parties to dramatically over-preserve.”

In response, the 2010 Duke Panel convened to take a look at 37(e) and propose an entirely new rule. According to Withers, the proposal would ensure that compliance with the new rule would insulate parties from sanctions, that sanctions would be warranted only if prejudice resulted, and that the failure to use a litigation hold would be excused if the failure were justified or harmless.

Hedges asked Shaffer if the new rule might resolve the fear of over-preservation that several witnesses described at the hearing.

“Under the new rule, the committee note makes clear that preservation should be approached in a reasonable manner,” Shaffer said. “The factors in 37(e) speak to that reasonableness.”

Shaffer noted that the enumerated factors potentially pose the question of whether the committee is intending by implication to suggest that if these factors are not met, then that creates presumptive evidence of unreasonableness. However, Shaffer said he did not believe the committee intended that consequence.

Hedges then asked Allman to discuss the difference between a curative measure and a sanction. Allman stated the curative measure can be implemented by judges without having to demonstrate an enhanced culpability or any type of prejudice. At the hearing, testimony indicated that many people wanted some requirement of prejudice to be included in the curative measure definition, and many were concerned that the differentiation between the two would shift the emphasis to curative over sanctions.

The lecturers also addressed the language of 37(b)(ii), which provides a 'catch-all' for truly reprehensible behavior so that it may be sanctioned if necessary.

“One of the not so clearly identified goals of the rule-making is to write a rule that is so comprehensive on spoliation topics that it will displace the inherent authority of the courts,” Allman said. “The committee felt compelled to incorporate the Silvestri exception that says some behavior is so heinous that it simply is not fair to take sanctions off the table.”

But the hearing testimony indicated concerns that the exception “risks swallowing the primary rule.”

Lastly, the panelists opined on whether or not the committee would eventually define willfulness, which was a hot topic at the hearing. Allman said he believed it would.

Future Hearings and Comments

The next public hearing will take place on Jan. 9 in Phoenix. The final hearing will be held on Feb. 7 in Dallas.

Comments on the proposed amendments can be submitted by e-mail to, or by U.S. mail to the following address: Committee on Rules of Practice and Procedure Administrative office of the United States Courts, One Columbus Circle NE, Washington, D.C., 20544.

The incoming comments will be publicly posted at, and a link to them is available on the eDiscovery Resource Center.


To contact the reporter on this story: Tera Brostoff in Washington at

To contact the editor responsible for this story: Carol Eoannou at

The webinar “Amending the Federal eDiscovery Rules: Fallout From the First Public Hearing” is available for on-demand listening. Order your copy at