Discovery is an important part of litigation. Discovery generally occurs after a lawsuit is filed and before trial. In discovery, the parties to the lawsuit obtain documents and information from each other, and sometimes from non-parties, pertaining to the claims and defenses in the lawsuit. Discovery also includes oral depositions, testimony by parties and witnesses given under oath before trial. In discovery, the parties obtain much of the evidence that they will use in the litigation, including at trial. There are specific, but different, rules that govern discovery in state and federal courts.
The discovery rules, along with a few other rules, in the Federal Rules of Civil Procedure were recently amended. These amended rules apply to cases filed in federal court on or after December 1, 2015. They also apply to cases pending in federal court on that date “insofar as just and practicable,” according to the order from the United States Supreme Court. The amended rules made significant changes to the scope of discovery in general and to the importance of the parties’ preservation of certain electronically stored information such as emails, text messages, and other documents on a computer, server, tablet, or smart phone.
Kilgore & Kilgore lawyers can help you understand the rules, discovery process, and litigation. For a free review of the facts of your case with a Kilgore & Kilgore attorney, send an email to firstname.lastname@example.org. Or, call us at (214) 969-9099.
The amendments to Federal Rule of Civil Procedure 26(b)(1) have added a proportionality requirement to the scope of permissible discovery. Permissible discovery now must be both relevant and proportional to the unique needs and circumstances of each case. To pass muster under the new proportionality requirement, a party’s discovery requests now must be further tailored and examined in light of 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.
A party may object to discovery requests that are beyond this newly-defined general scope of discovery. If a dispute arises, the federal judge will examine these and all other factors in determining whether or not the requested discovery is proportional to the needs of the case.
In today’s world, potentially discoverable documents and information such as emails and text messages often reside on computers, smart phones, network servers, and other electronic storage systems and devices. Federal Rule of Civil Procedure 37(e) was recently amended to reflect the importance of a party’s preservation of certain electronically stored information. Regarding a failure to preserve certain electronically stored information, this rule now states, if electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, then, upon finding prejudice to another party from loss of the information, the court may order measures no greater than necessary to cure the prejudice. Should the court find that the party acted with the intent to deprive another party of the information’s use in the litigation, then the court may presume that the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable to the party, or dismiss the action or enter a default judgment. Thus, in order to avoid any adverse measures by the court, individuals and organizations in the anticipation or conduct of litigation should take reasonable steps to preserve emails, text messages, documents, or other electronically stored information that could be potentially discoverable in litigation.
In its note to the amended rules, the Advisory Committee on federal civil rules stated that proportionality was a factor to be used in evaluating the reasonableness of a party’s preservation efforts. The Committee noted that the court should be sensitive to party resources. It also stated that counsel should become familiar with their clients’ information systems and digital data, including social media, so as to address these issues.
When it comes to keeping up with changes in the law and rules of litigation, there really is no substitute for experience. Kilgore & Kilgore lawyers have a wealth of experience at your disposal. To learn more about Kilgore & Kilgore, click here Kilgore & Kilgore. To contact us through our website, click here Contact Kilgore & Kilgore. For a free review of the facts of your case with a Kilgore & Kilgore attorney, send an email to email@example.com. Or, call us at (214) 969-9099.