The recent 2015 amendments to the Federal Rules of Civil Procedure, which were approved on October 9, 2015, take effect on December 1, raising concerns about how some of the changes will affect class action litigation.
First, changes to existing Federal Rule of Civil Procedure (“FRCP”) 26(b)(1) will impose an express limitation on discovery. Now, discovery will be limited to information that is 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.
Although class actions usually involve damages consisting of large amounts of money, that is not always the case. Some class actions include a class of fewer than 100 people and seek a comparatively smaller sum of damages, or some type of equitable or injunctive relief. With the new rule in place, defendants may be able to assert more control over the scope of discovery in class action cases. The smaller the damages, the more a defendant may contend that discovery should be limited to a narrow and well-defined scope.
Next, FRCP 26(c)(1)(B) will have a new provision providing expressly for a protective order directing cost sharing in discovery matters. All too often in class action cases, defendants move to shift the cost burden of conducting discovery to the lead plaintiff or the lead plaintiff’s law firm.
Revisions to FRCP 16 include a number of suggestions regarding the early proceedings of litigation, including language recommending that the scheduling order make reference to preserving electronically stored information (ESI), while also recommending acknowledgement of a clawback agreement under FRCP 502 for the accidental disclosure of privileged documents. Although courts have included both of these terms in scheduling orders, including this language in Rule 16 may encourage courts to address both matters more directly.
Similarly, the amendments to Rule 37 provide a narrower scope for sanctions in the event a party fails to take reasonable steps to preserve ESI during a litigation hold. Following December 1, an instruction to the jury regarding an adverse inference or other harsh sanction is only permitted “upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation.”
Finally, modifications to Rule 34 will now allow a responding party who objects to a discovery request to indicate “another reasonable time” for producing the documents sought in the request. When class actions involve large, multinational corporations, complying with document requests can take a substantial amount of time. This modification may help ease the burden on large defendants while encouraging the parties to engage in ongoing meet and confer efforts in lieu of seeking judicial intervention in discovery disputes.
Another discovery-related amendment requires a party responding to discovery with an objection to state whether any documents are being withheld on the basis of the asserted objections.
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