Effective December 1, 2015:
Fed. Rule Civ. Pro. 26(b), governing the general scope of discovery and its limits, has been redefined to include an explicit reference to proportionality, and the factors to be considered:
“Parties may obtain discovery regarding any non-privileged 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.”
Amended Rule 16(b)(3) provides that a scheduling order may provide for the disclosure, discovery, or preservation of electronically stored information, (and may include agreements reached by the parties under Fed. Rule Evid. 502).
Amended Rule 26(f)(3)(C) provides that the discovery plan must state the parties’ views and proposals on the preservation of electronically stored information.
Amended Rule 34(b)(2)(B) states that a party responding to a request for production “may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.”
Amended Rule 34(b)(2)(C) provides that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.” The Advisory Committee notes indicate that an objection stating the limits that controlled the search for responsive materials qualifies as a statement that materials have been “withheld”.
Amended Rule 37(e) provides for different sanctions in the cases of negligent and willful failure to preserve electronically stored information “that should have been preserved in the anticipation or conduct of litigation.”