There are many opportunities for cooperation in complex cases, Song notes. “For certain issues,” she says, “adversaries are beginning to find that litigating might not be worthwhile.” Song highlights several topics on which counsel can find common ground, such as:

To increase transparency and enhance cooperation, counsel must better understand data and systems at a technical level, adds Craig Ball, a certified computer forensic examiner, law professor, and electronic evidence expert. “Attorneys must be able to distinguish between benign information relating to integrity of process, such as search methodologies and capabilities, and sensitive client information relating to the merits of the case,” he explains. “If counsel does not appreciate these differences, it is far more difficult to embrace cooperation.”

For more information on the meaning of cooperation in discovery, what cooperation entails, and how to facilitate cooperation with opposing counsel, see Article, Learning to Cooperate.

Notably, amended Rule 1 does not provide a new or an independent basis for sanctions, nor abridge any other rule (2015 Advisory Committee Note to FRCP 1). The lack of an enforcement mechanism has led many attorneys to deem the changes to Rule 1 “aspirational, in the nature of mood music,” Berenson says. “Unfortunately, there are attorneys who have been trained in obstruction, obfuscation, and borderline irresponsible behavior when it comes to discovery. A few references salted in the advisory committee notes have a limited ability to alter that kind of conduct.”

However, Barkett sees Rule 26(g) emerging as a powerful tool to enforce the cooperation mandate. Under this rule, an attorney signing a discovery request or response must certify that the attorney has complied with the discovery rules and that the attorney’s request, response, or objection is not being served for an improper purpose and is not unduly burdensome (FRCP 26(g)(1)).

If a court determines that a discovery request, response, or objection violates the discovery rules without “substantial justification,” it must impose sanctions on the attorney, his client, or both (FRCP 26(g)(3)). The 1983 advisory committee determined that the mandatory nature of the provision was necessary because of judges’ “asserted reluctance to impose sanctions on attorneys who abuse the discovery rules” (1983 Advisory Committee Note to FRCP 26(g)).

Although historically courts rarely relied on Rule 26(g) to impose sanctions, recent decisions show more frequent use of these sanctions where attorneys and their clients have failed to embrace transparency and cooperation in the discovery process (see, for example, HM Elecs., Inc. v. R.F. Techs., Inc., , at *1, *12-14, *16, *18, *20 (S.D. Cal. Aug. 7, 2015); Brown v. Tellermate Holdings Ltd., , at *17-23 (S.D. Ohio July 1, 2014); Branhaven, LLC v. BeefTek, Inc., 288 F.R.D. 386, 391-92 (D. Md. 2013)).

The revised rules help underscore the importance and availability of Rule 26(g) sanctions. “By juxtaposing amended Rule 1 with Rule 26(g)(3), judges might consider a heightened standard for interpreting ‘substantial justification,’” Barkett suggests. “And there is nothing like the risk of a personal sanction to modify an attorney’s behavior.”

In contrast with the former rule forbidding parties to serve document requests before the Rule 26(f) conference, amended Rule 26(d)(2) permits parties to make these requests before the conference, so long as they are delivered more than 21 days after the summons and complaint have been served. These early discovery requests are deemed to have been served as of the date of the Rule 26(f) conference. Following the conference, producing parties have 30 days to serve objections and responses. (FRCP 26(d)(2), 34(b)(2)(A).) By exchanging the requests in advance, “parties can have a meaningful dialogue about potential scope problems without the time-to-respond clock ticking,” Judge Grimm says.

“As the requesting party, we do not necessarily know exactly what evidence the other side has, so we cannot always narrowly tailor requests at the outset,” notes Lea Bays, Of Counsel at Robbins Geller Rudman & Dowd LLP. By exchanging early document requests, producing parties can articulate specific burden arguments and requesting parties can narrow the scope of their requests accordingly. “Hopefully, this will move the ball forward so that time is not wasted during the meet and confer process,” she adds.

To reach an agreement that reasonably narrows the scope of discovery requests, Song advises that counsel should be prepared to bring concrete and detailed information to the table. This might include, for example, information about the volume and responsiveness of ESI implicated by the requests, and the amount of time required to review it. According to Song, the information gathered during the initial ESI collection and analysis can facilitate negotiations by providing opposing counsel with some comfort that the requested ESI is duplicative or cumulative of other information the producing party has agreed to disclose. “This can help balance information asymmetry,” she says. Moreover, if a producing party’s proportionality arguments are not successful during the meet and confer discussions, Song reasons that “this early discovery analysis can bolster the concrete showing a party must make in motion practice.”

For more information on the topics that counsel should be prepared to discuss at the Rule 26(f) meet and confer and steps to take after the conference, see Rule 26(f) Conference Checklist.

For data-rich parties, the need to have concrete and detailed information on the scope of discovery in advance of the Rule 26(f) conference strengthens the argument for using early data assessment (EDA) tools, which requires significant upfront investment. Song cautions that justifying these costs can be difficult when discovery has not yet started. Exchanging early document requests may bring these issues to the forefront sooner in the litigation process and help rationalize the expense of EDA.

For more information on using EDA and early case assessment tools before discovery has commenced, see Practice Notes, Case Assessment and Evaluation and The Advantages of Early Data Assessment.

The amendments to Rule 26(f)(3), which add two topics to the required content of discovery plans, also are designed to encourage the early identification and resolution of potential disputes. Specifically, under the revised rule, discovery plans must state the parties’ views and proposals on:

Both plaintiffs’ counsel and defense counsel have applauded these changes. “Adding preservation to the list of topics to address early on when developing a discovery plan makes it less likely that ESI will be lost,” Bays says. Even where a party failed to preserve relevant ESI, requiring opposing counsel to focus on these issues early encourages the parties to jointly develop potential solutions. “Sanctions do not help us obtain the information that we requested,” Bays adds, “and the information is really what we are after.”

Barkett agrees. “Now that preservation is on the list of items to discuss, it is important to avoid ‘gotcha’ situations later,” he says. “You do not want to try a case hoping that someone falls into a sanctions trap. You want merits-based resolution of claims.”

For a sample report and discovery plan that parties can use to memorialize the results of their meet and confer, see Standard Document, Rule 26(f) Report and Discovery Plan.

In determining proportionality in discovery, parties and courts must consider the following factors:

(FRCP 26(b)(1); see also FRCP 30, 31, 33 (reflecting the proportionality factors in requests to expand discovery, for example, to increase the number or length of depositions, or to permit more than 25 interrogatories).)

All but one of these proportionality factors have been in the FRCP since 1983, most recently located in Rule 26(b)(2). The current rule changes restore the factors to their original, more prominent place in Rule 26(b)(1), as part of how the scope of discovery is defined. This stresses the parties’ obligation to consider proportionality at the outset of litigation rather than after they have incurred significant collection, review, and production costs. The new factor, directing parties to consider their relative access to relevant information, reinforces the importance of proportionality considerations in cases involving information asymmetry.

Many attorneys have expressed concern that intensifying the focus on proportionality may have unintended consequences, including increasing discovery on discovery. For example, by objecting to a request based on proportionality, “a producing party opens up areas of inquiry that historically have been off-limits,” Ball suggests. He explains that a party’s financial resources typically are out-of-bounds, except where punitive damages are at issue. “By forcing a requesting party to justify its request and rebut a claim of undue burden,” Ball says, “a party’s wealth is one of the factors that must be weighed.”

For more information on issues counsel should consider when seeking discovery about an adversary’s efforts to preserve data and comply with document requests, and how to minimize discovery on discovery when faced with these requests, see Practice Note, Discovery on Discovery (Federal).

Bays counters that the changes to Rule 26(b) are of limited significance in practice. “We already consider and engage in meaningful discussions about the proportionality factors,” she says. “As a result, I do not see this amendment making a big change in the way we proceed with discovery.”

Other attorneys agree that the elevation of proportionality, while beneficial, is likely to have a marginal impact. “Proportionality is not a magic elixir that can cure all the ills of discovery,” Berenson comments. “It is a helpful tonic.”

To further control excessive discovery, amended Rule 26(b)(1) eliminates a party’s ability to discover information that only is:

Under former Rule 26(b)(1), discovery on the subject matter of a case beyond the pleaded claims and defenses was permitted “for good cause.” During the rulemaking process, many attorneys argued that plaintiffs used that provision tactically to develop new claims or defenses and expand the scope of discovery.

Similarly, attorneys argued that the “reasonably calculated” language, which was added in 1946 to avoid hearsay objections during depositions, was consistently invoked to expand the scope of discovery and harass data-rich litigants. “We had a scope rule designed for depositions that was inadvertently expanded to the electronic world,” Barkett remarks. “The language is far too broad when you are dealing with terabytes of information.”

However, others have suggested that these excisions cure problems that do not exist. For example, the Federal Magistrate Judges Association noted that “very few” discovery disputes center on the distinction between what is relevant to the parties’ claims or defenses and what is relevant to the case’s subject matter (see Comments of the Federal Magistrate Judges Ass’n on Proposed Amendments to FRCP (Feb. 7, 2014)).

Amended Rule 26(b)(1) also removes the express language permitting discovery of “the existence, description, nature, custody, condition, and location of any documents or other tangible things.” In response to concerns that parties might use this change and the elimination of subject matter discovery to deny adversaries access to relevant metadata information, the advisory committee notes clarify that the rule does not limit a party’s ability to discover information:

(2015 Advisory Committee Note to FRCP 26(b)(1) (stating that these three examples would qualify as relating to a claim or defense, and noting that information about data sources “is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples”).)

Attorneys are hopeful that their adversaries will adhere to the guidelines in the advisory committee notes. “Information about ESI sources,” Bays says, “is clearly necessary to negotiate an appropriate and proportional search methodology.”

Ball also emphasizes the importance of metadata in discovery. “This ancillary information serves a critical purpose to effectively manage ESI, even if it has limited probative value regarding a party’s claims or defenses,” he says. “Metadata has a utility value for organization and authentication that cannot be overstated.”

A court will examine the reasonableness of a party’s efforts based on the circumstances that existed at the time the efforts were commenced, Judge Grimm explains. For example, a party may have acted reasonably by preserving only the information from its key custodians and repositories if the party considered its liability contained and forecasted only modest damages. “Hindsight analysis will not hold you to a greater standard if the dispute later ripens into an unforeseeably complex litigation,” Judge Grimm adds.

The issue of who controls ESI for preservation purposes is increasingly important as more companies outsource certain information technology functions. Berenson notes that service providers have their own rules and procedures. “Even if we have a contract that gives us certain rights over the data,” he says, “we do not have practical control over how that data is stored or preserved.”

Therefore, courts must assess “the extent to which a party knew of and protected against” risks posed by the third party’s control (2015 Advisory Committee Note to FRCP 37(e)). Judge Grimm notes that a court may find that a party acted unreasonably, for example, if the party continued to store ESI subject to a preservation obligation on a cloud server whose provider had signaled:

Although proportionality considerations will help limit the incidence of over-preservation, attorneys await more guidance on what proportionality looks like in this context. “Potential litigants will preserve less ESI,” Song says, “but how much less is unclear.”

Berenson notes that, in most situations, “companies easily can identify the custodians who played the most central role in a dispute, and whose storage media are almost certain to contain all or most of the potentially relevant evidence.” Proportionality enables companies to focus on those custodians, he says, and “avoid imposing additional preservation obligations on tangential or marginal players whose knowledge or document universe is merely likely to be duplicative of the central players.”

Where a party negligently failed to preserve ESI, amended Rule 37(e)(1) precludes a court from relying on its inherent authority to impose case-altering sanctions. Instead, the court must determine the prejudice suffered by the victim of the spoliation (see Box, Proving a Failure to Preserve) and consider different curative measures.

The court is afforded broad discretion in identifying and imposing appropriate curative measures, so long as the relief is no greater than necessary to cure the prejudice suffered and does not include the serious measures identified in Rule 37(e)(2). For example, the court may:

(2015 Advisory Committee Note to FRCP 37(e)(1).)

A court may issue more serious sanctions only where it has established that there was an intent to deprive. In these cases, the moving party must demonstrate that the other party failed to preserve ESI with the specific intent of depriving its adversary of the data. Where the intent to deprive is established, prejudice to the other party is presumed (see Box, Proving a Failure to Preserve). This rule change provides a uniform standard in federal court for the imposition of severe sanctions, and expressly rejects a decision from the US Court of Appeals for the Second Circuit that was read by lower courts to permit an adverse inference instruction where a party negligently spoliated ESI (see Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108-10 (2d Cir. 2002); Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 431 (S.D.N.Y. 2004)).

Judge Grimm notes that courts are authorized, but not required, to impose case-altering sanctions in these cases, and should consider appropriate sanctions to address and deter failures to preserve. He stresses that “the remedy should fit the wrong.” For example, these sanctions may include:

(2015 Advisory Committee Note to FRCP 37(e)(2).)