The December 2015 changes to the Federal Rules of Civil Procedure (FRCP) continue to cause legal personnel to scratch their heads in wonderment. The most impactful amendments thus far seem to be those made to Rule 26(b)(1) and Rule 37(e), respectively.

In a recent article offering clarity and guidance, Legaltech News contributing writer Zach Warren succinctly highlighted four federal court cases that addressed the amendments in proceedings, two of which we discuss below.

One of the first cases of the new year to explore the recent changes to the FRCP was CAT3 v. Black Lineage (S.D.N.Y. Jan. 12, 2016), which raised “significant issues concerning the reach of newly amended Rule 37(e) of the Federal Rules of Civil Procedure, the standard of proof governing spoliation, and the relief appropriate for the destruction of electronically stored information (ESI).”

In this case, the plaintiffs asserted that the defendants had a trademarked domain name that infringed on their “intellectual property that had been used as a domain name, Web site, and online magazine” and claimed they notified the defendants of the potential infringement by email as early as 2013. However, during discovery, multiple versions of the plaintiffs’ original notification email came to light, suggesting that the plaintiffs had deleted the original emails and replaced them with an altered version that they produced in discovery. Citing the new rule 37(e), Magistrate Judge James Francis found that the plaintiffs were “obligated to preserve [the emails] in connection with this litigation” and imposed sanctions.

Another federal court decision highlighted by Warren, Kissing Camels Surgery Center, LLC v. Centura Health Corp. (D. Colo. Jan. 22, 2016), addressed Rule 26(b)(1) and cited U.S. Supreme Court Chief Justice John Roberts’s “Year-End Report on the Federal Judiciary” in doing so. Magistrate Judge Nina Y. Wang commented that the Kissing Camels case implicated the purposes underlying the amendments that Justice Roberts mentioned in the “Report,” particularly encouraging proportionate discovery.

The Kissing Camels opinion stemmed from a discovery dispute that arose when the defendants asked the plaintiffs to correlate the terabyte of documents they produced with their corresponding document requests. However, the plaintiffs were not solely at fault; the defendants’ improper “omnibus requests” did not meet the specificity requirement of Rule 34, and both parties used boilerplate language in their discovery requests and objections. The court chastised both sides, saying it had not anticipated, nor did the Federal Rules intend, for parties to be “mired in continuous disputes over the appropriateness of discovery served and the adequacy of responses for six months.”

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