In the months leading up to their enactment, the Dec. 1, 2015 amendments to the Federal Rules of Civil Procedure generated a substantial amount of commentary, analysis, and—in some cases—concern from practicing litigators. The two most significant changes—the reformulation of Rule 26(b)(1)’s definition of discoverable material, and Rule 37(e)’s new framework for sanctioning the spoliation of electronically stored information (ESI)—both seemingly had the potential to impact the discovery process significantly. Thus far, the impact has been a mixed bag.
As this article details, the change to Rule 26(b)(1) appears to have done little but provide another tool for courts to limit patently overbroad discovery requests. On the other hand, the amended spoliation standard has, at least for some courts, truly set the ESI sanctions bar higher, and for other courts, forced a heavier reliance on inherent judicial authority to justify the imposition of sanctions.
