Category Archives: eDiscovery

Amendments to FRCP 26(b) – proportionality in discovery – rearranged

26(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).

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Amendments to FRCP 16 – scheduling order can contain preservation

Rule 16. Pretrial Conferences; Scheduling; Management

(a) Purposes of a Pretrial Conference. In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as:

(1) expediting disposition of the action;

(2) establishing early and continuing control so that the case will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough preparation; and

(5) facilitating settlement.

(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 or by telephone, mail, or other means.

(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any event unless the judge finds good cause for delay, the judge must issue it within the earlier of 120 90 days after any defendant has been served with the complaint or 90 60 days after any defendant has appeared.

(3) Contents of the Order.

(A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions.

(B) Permitted Contents. The scheduling order may:

(i) modify the timing of disclosures under Rules 26(a) and 26(e)(1);

(ii) modify the extent of discovery;

(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;

(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.

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Amendments to FRCP 37(e) – sanctions

Full text of FRCP 37:

(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:

(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.

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HM Electronics, Inc. v. R.F. Technologies, Inc. – ediscovery sanctions case

Timeline of HM Electronics v. RF Technologies

E-discovery quotes from Committee Opinion and HM Electronics:

“Not every litigated case involves e-discovery. Yet, in today’s technological world, almost every litigation matter potentially does.”— Formal Opinion No. 2015-193 of the Standing Committee On Professional Responsibility and Conduct of the California State Bar

“Federal courts do not require perfection in ESI discovery.” HM Electronics at 27, citing The Pension Comm. Of the Univ. of Montreal Pension Plan v. Banc of Am. Securities, LLC, 685 F.Supp.2d 456, 461 (S.D.N.Y.).

“Perfection in preserving all relevant electronically stored information is often impossible,” and “‘[t]his rule recognizes that reasonable steps’ to preserve suffice; it does not call for perfection.”).  Advisory Committee Notes to proposed new Rule 37(e)

“The touchstone of discovery of ESI is reasonableness. (Id.). However, as one court noted, If litigants are to have any faith in the discovery process, they must know that parties cannot fail to produce highly relevant documents within their possession with impunity. Parties cannot be permitted to jeopardize the integrity of the discovery process by engaging in halfhearted and ineffective efforts to identify and produce relevant documents. Bratka v. Anheuser-Busch Co., Inc., 164 F.R.D. 448, 463 (S.D. Ohio 1995). “Litigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice.” Haeger v. Goodyear Tire & Rubber Co., –F.3d–, 6 n.1 (9th Cir. July 20, 2015) (quoting Haeger v. Goodyear Tire and Rubber Co., 906 F.Supp.2d 938, 941 (D. Ariz. 2012)).


Annotated opinion and docket sheet (download the PDF and view bookmarks to see my annotations): Annotated HM Electronics Inc v RF Technologies Inc – magistrate judge order on sanctions (2015 WL 4714908,  S.D. Cal. No. 12cv2884–BAS–MDD)

Docket sheet from Pacer, downloaded November 12, 2015: 2015-11-12 HM electronics docket sheet

Northern District of California E-Discovery Guidelines