Courts applying new FRCP amendments in discovery cases.

• Position: E-DISCOVERY - Federal rules for civil procedure

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Courts have not hesitated to employ the December 2015 amendments to the U.S. Federal Rules for Civil Procedure (FRCP) in rulings on preservation, proportionality, and specificity.

In one recent example, NuVasive v. Madsen Med. (S.D. Cal. Jan. 26, 2016), a court in the Southern District of California cited amended Rule 37(e) in allowing the plaintiff to vacate a prior order that imposed an adverse inference for failing to preserve text messages. Under the previous Rule 37(e), the court said that NuVasive had spoliated evidence by not saving messages of four employees who were key to the case, and it denied NuVasive when it tried to make a similar claim against Madsen.

But, the court did not say that NuVasive had intentionally failed to preserve the text messages, and as the court noted in its January ruling, intention matters. The new rules allow an adverse inference for failure to preserve ESI "only upon the finding that the [spoliating] party acted with the intent to deprive another party of the information's use in the litigation." The FRCP amendments got the U.S. Supreme Court's attention as well. In the court's 2015 "Report on the Federal Judiciary," Chief Justice John Roberts addressed the changes. Discussing proportionality, he wrote that [Rule 26(b) (1)] "states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to...