Resources - United States
Amendments to Federal Rules of Civil Procedure
Before the civil rules first came into effect in 1938, discovery in both law and equity cases in the federal courts was extremely limited. The 1938 rules introduced liberal discovery, further expanded by amendments in 1946 and 1970. Since then the discovery rules have been amended in 1980, 1983, 1993 and 2000 to provide a more effective means for controlling overuse and occasional misuse of the discovery rules. The latest amendments to the discovery rules are designed to enhance the efficiency and uniformity and electronic discovery in litigation.
For a full discussion of the amendments to Rules 16, 26(a), 26(b)(5), 26(f), 33, 34 and Form 35 visit: http://www.uscourts.gov/rules/Reports/ST09-2005.pdf.
Recent Judgments
BNSF Railway Co. v. Town of Vinton (La. Ct. App. Mar. 12, 2008)
The appellate court upheld plaintiff’s claim that certain files of the Louisiana Department of Transportation and Development were privileged and protected from discovery by 23 U.S.C.S. § 409. The appellate court also held that printed documents including privileged data should have been completely protected from discovery by the trial court because it was impractical to shield only the privileged sections of data in the printouts.
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Clearone Communications (D. Utah Mar. 10, 2008)
Plaintiff alleged that defendant had withheld the disclosure of a “smoking gun” email during discovery. Defendants claimed that they did not produce the "smoking gun" email because the computer system used by the author of the email did not retain copies of email sent through the system.
The court stated that this was a "significant irregularity," but that there was no evidence that the defendants had a copy of the “smoking gun” email in their possession at the time of making discovery. A sanction less than entry of judgment against defendants was held to be appropriate by the court but it ordered that the trier of fact should be permitted to consider that it had found the defendant’s representative "did not answer some questions truthfully."
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Commerce Benefits Group, Inc. v. McKesson Corp. (N.D. Ohio Mar. 6, 2008)
Plaintiff in a breach of contract action sought an order compelling defendants to produce all documents, including email, regarding a proposed program between plaintiff and defendants. Defendants countered that as a result of their search protocol, any relevant documents had been produced.
The court denied the motion to compel because plaintiff had not demonstrated "that the focus of the defendants' search was not reasonably directed toward finding the documents." Also, plaintiff had not "established that the relevance and necessity of any further discovery into, for example, email backup tapes, outweighs the burden and expense that would ensue, not to mention the further delay which would certainly follow." The court stated that the proposed discovery did not seem "essential to the core issues" and that plaintiff had not explained how the discovery would assist plaintiff.
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Cone v. Rainbow Play Systems (D.S.D. Mar. 5, 2008)
Plaintiff filed an age discrimination claim against defendant and sought discovery of personnel files and email among four managers at the plant where he worked. Defendant objected to the discovery on various grounds including that overbroad and privacy-invading discovery was being sought. The court requested defendant to deliver personnel files to the court for an in camera inspection and determination whether the files should be produced to plaintiff.
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Connor v. Sun Trust Bank (N.D. Ga. Mar. 5, 2008).
An important and relevant email document of the defendant’s was obtained by plaintiff from a source other than defendant who had failed to produce the email in response to plaintiff's discovery requests.
The court held that plaintiff was prejudiced by the failure of defendant to produce the email and that the failure raised the question whether all other relevant email had been produced. The court held that the defendant had acted in bad faith and must have actively deleted the email from its sent items. However, the Court regarded the defendant's culpability as "minimal" and held that the potential for abuse was "slight." Thus, an adverse inference sanction rather than outright dismissal was imposed.
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