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By Jevon Bindman & Michele C.S. Lange
December 1, 2015 marked the arrival of the much-anticipated amendments to the Federal Rules of Civil Procedure (FRCP), which altered the federal ediscovery landscape and left parties and courts grappling with the impact of the new rules. Meanwhile, in Minnesota state courts, practitioners are left wondering how these new rules differ from those with which they are familiar, as the current Minnesota Rules of Civil Procedure substantially track the decade-old FRCP amendments from 2006. Here, we have summarized three of the most prominent FRCP amendments pertaining to ediscovery, noting comparable provisions in the Minnesota state rules.
Rule 26: Proportionality
Amended FRCP 26(b)(1) clarifies the definition of discoverable information by removing the “reasonably calculated” language and adding emphasis on proportionality. In doing so, the Advisory Committee sought to balance the benefit of discovery to one party with the burdens of collection and production to the other by considering the following factors:
- the importance of the issues at stake,
- 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.
In one Minnesota federal district court case addressing the use of digital imaging to preserve evidence, Magistrate Judge Tony N. Leung referenced the new proportionality factors, which led to an unconventional preservation protocol requiring the parties to split the costs of Go-Pro Cameras in order to capture discoverable evidence. City of Wyoming v. Proctor & Gamble Co., 2016 U.S. Dist. LEXIS 163817, at *16-18 (D. Minn. Oct. 7, 2016) (noting “the importance of this information and the relatively small cost of these cameras”).
The Minnesota Rules are no stranger to proportionality, which is present not only in state civil procedure Rule 26.02(b), but also in Rule 1, which requires parties and the court to ensure that “costs are proportionate to the amount in controversy and the complexity and importance of the issues.” The factors referenced in Rules 1 and 26.02 strongly mirror the proportionality factors in FRCP 26(b)(1). Recent case law also illustrates that Minnesota courts embrace proportionality in discovery. In one case, the Minnesota Court of Appeals affirmed a district court order that limited discovery, stating that courts have “broad discretion” to ensure proportionality in discovery. Capital One Bank, N. A. v. Mashak, 2015 Minn. App. Unpub. LEXIS 1122 (Minn. Ct. App. Dec. 7, 2015). The bottom line: whether in state or federal court in Minnesota, proportionality matters.
Rule 34: Discovery Objections
Amended FRCP 34(b)(2) prevents the use of generalized objections to discovery requests, and further requires acknowledgement that responsive materials are being withheld based on an objection. Citing the proportionality requirements of Rule 26(b)(1), federal courts have also required that discovery requests be specific and illustrate why the requested information is relevant and not burdensome to produce. See, e.g., Nelson v. Am. Family Mut. Ins. Co., 2016 U.S. Dist. LEXIS 93778, at *22-23 (D. Minn. July 18, 2016) (“Discovery is designed to facilitate the fair and reasonable resolution of a case. The parties have lost sight of this end, repeatedly failing to resolve disputes that were avoidable had they simply abided by their obligations to be diligent in their discovery efforts and forth-coming in their discovery responses.”)
Minnesota Rule 34.02 does not require a party to provide specific objections or state that responsive materials are being withheld. However, judges prefer transparency and cooperation over obfuscation, in order to avoid unnecessary and expensive discovery conflicts. Amended FRCP 34 mirrors the aims of Minnesota Rule 1 to ensure that litigation is both efficient and proportional.
Rule 37: Sanctions for Failure to Preserve
Amended FRCP 37(e) requires that parties take “reasonable steps” to preserve electronically stored information (ESI), and provides that sanctions for failure to preserve ESI must be commensurate with the prejudice caused to the opposing party. See, e.g., Living Color Enters. v. New Era Aquaculture Ltd., 2016 U.S. Dist. LEXIS 39113, at *11 n.5 (S.D. Fla. Mar. 22, 2016). More draconian punishments, including adverse inferences or dismissal, are available upon a showing of intent to deprive. See id. at *21 (“The amended Rule 37(e) does not permit an adverse inference instruction or other severe sanctions for negligence.”). In cases of egregious misconduct, courts in other federal jurisdictions have used their inherent power to issue sanctions beyond those described in FRCP 37(e), including punitive damages. See, e.g., Cat3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 497-98 (S.D.N.Y. Jan. 12, 2016); GN Netcom v. Plantronics, 2016 U.S. Dist. LEXIS 93299, at *44 (D. Del. July 12, 2016).
Minnesota Rule 37.05 contains the “shield” of FRCP 37(e) in that it prohibits sanctions for a party’s failure to preserve ESI through routine, good-faith operation of its electronic systems. It lacks the “sword” function, however, because it does not provide explicit power to administer sanctions for spoliation that prejudices the party seeking discovery. Only the court’s inherent powers currently afford a Minnesota court a method for administering such sanctions. See, e.g., Patton v. Newmar Corp., 520 N.W.2d 4, 7-8 (Minn. Ct. App. 1994) (concluding a court may sanction a party for spoliation of evidence “even where there has been no violation of a court order and there has been no finding of bad faith”).
The 2015 amendments to the Federal Rules of Civil Procedure entered with the admirable goals of curbing ediscovery excess and reducing waste of judicial resources. Most of the nation’s states will adopt their own changes reflecting these new rules. Indeed, the Minnesota Advisory Committee on the Rules of Civil Procedure recently reconvened and will likely consider the 2015 FRCP ediscovery amendments in its upcoming term. If history is any indication, however, Minnesota’s adoption of the federal ediscovery amendments may yet be several years in the future. Meanwhile, attorneys need to stay vigilant as to whether Minnesota courts effectively absorb the FRCP amendments before formal adoption.
Looking to learn more? Kroll Ontrack published a new guide, Federal Rules of Civil Procedure: Practical Analysis for Organizations and Legal Teams, which provides the text of the major rules amendments and the accompanying Committee Notes. It also examines their impact on key ediscovery rule provisions, along with analysis for organizations and their legal teams.
Jevon Bindman is an Associate at Maslon LLP and practices in the area of general commercial litigation. Before joining Maslon, he served as a law clerk to the Honorable G. Barry Anderson of the Minnesota Supreme Court.
Michele C.S. Lange is the director of thought leadership and industry relations for Kroll Ontrack, based in Eden Prairie. In this role, she regularly writes and speaks on topics related to electronic discovery, computer forensics and technology’s role in the law. Most notably, she authored the American Bar Association book, titled “Electronic Evidence and Discovery: What Every Lawyer Should Know Now.”