Tips on Meet-and-Confer Conferences. Steven D. Ginsburg – February 28, Share this: It is helpful to have a list of pretrial agreements to try to reach with. This new emphasis on proportionality gets a jump start with the revised language around the meet-and-confer conference. With the deadline falling sooner ( that the movant has in good faith conferred or attempted to confer with the person programmed, and implemented to meet the party's technical and business.
B When Considered Served.
The request is considered to have been served at the first Rule 26 f conference. A methods of discovery may be used in any sequence; and B discovery by one party does not require any other party to delay its discovery.
A party who has made a disclosure under Rule 26 a —or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response: A in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or B as ordered by the court.
For an expert whose report must be disclosed under Rule 26 a 2 Bthe party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26 a 3 are due. Except in a proceeding exempted from initial disclosure under Rule 26 a 1 B or when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16 b.
In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26 a 1 ; discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan.
The court may order the parties or attorneys to attend the conference in person. If necessary to comply with its expedited schedule for Rule 16 b conferences, a court may by local rule: Every disclosure under Rule 26 a 1 or a 3 and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name—or by the party personally, if unrepresented—and must state the signer's address, e-mail address, and telephone number.
By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry: A with respect to a disclosure, it is complete and correct as of the time it is made; and B with respect to a discovery request, response, or objection, it is: Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention.
If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.
The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation. Notes As amended Dec. July 1, ; Feb. July 1, ; Mar. July 1, ; Apr. This rule freely authorizes the taking of depositions under the same circumstances and by the same methods whether for the purpose of discovery or for the purpose of obtaining evidence.
Many states have adopted this practice on account of its simplicity and effectiveness, safeguarding it by imposing such restrictions upon the subsequent use of the deposition at the trial or hearing as are deemed advisable. Codes Carroll, Civ. Rules of Practice adopted by the Supreme Ct. This and subsequent rules incorporate, modify, and broaden the provisions for depositions under U.
These statutes are superseded insofar as they differ from this and subsequent rules. While a number of states permit discovery only from parties or their agents, others either make no distinction between parties or agents of parties and ordinary witnesses, or authorize the taking of ordinary depositions, without restriction, from any persons who have knowledge of relevant facts. Code Bagby, Art.
Rules of Practice adopted by Supreme Ct. The more common practice in the United States is to take depositions on notice by the party desiring them, without any order from the court, and this has been followed in these rules.
Note to Subdivision b. While the old chancery practice limited discovery to facts supporting the case of the party seeking it, this limitation has been largely abandoned by modern legislation. Note to Subdivisions deand f. The restrictions here placed upon the use of depositions at the trial or hearing are substantially the same as those provided in U.
The amendment eliminates the requirement of leave of court for the taking of a deposition except where a plaintiff seeks to take a deposition within 20 days after the commencement of the action.
The retention of the requirement where a deposition is sought by a plaintiff within 20 days of the commencement of the action protects a defendant who has not had an opportunity to retain counsel and inform himself as to the nature of the suit; the plaintiff, of course, needs no such protection.
The present rule forbids the plaintiff to take a deposition, without leave of court, before the answer is served. Sometimes the defendant delays the serving of an answer for more than 20 days, but as 20 days are sufficient time for him to obtain a lawyer, there is no reason to forbid the plaintiff to take a deposition without leave merely because the answer has not been served.
In all cases, Rule 30 a empowers the court, for cause shown, to alter the time of the taking of a deposition, and Rule 30 b contains provisions giving ample protection to persons who are unreasonably pressed. The modified practice here adopted is along the line of that followed in various states. The amendments to subdivision b make clear the broad scope of examination and that it may cover not only evidence for use at the trial but also inquiry into matters in themselves inadmissible as evidence but which will lead to the discovery of such evidence.
The purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the preparation or presentation of his case.
In such a preliminary inquiry admissibility at trial should not be the test as to whether the information sought is within the scope of proper examination. Such a standard unnecessarily curtails the utility of discovery practice. Of course, matters entirely without bearing either as direct evidence or as leads to evidence are not within the scope of inquiry, but to the extent that the examination develops useful information, it functions successfully as an instrument of discovery, even if it produces no testimony directly admissible.
United Air Lines Transportation Corp.Civil Rules 2015—Proportional Discovery
Thus hearsay, while inadmissible itself, may suggest testimony which properly may be proved. Thus it has been said that inquiry might not be made into statements or other matters which, when disclosed, amounted only to hearsay. See Maryland for use of Montvila v. Pan-American Bus Lines, Inc. The contrary and better view, however, has often been stated. United Air Lines Transport Corp. Case 2; DeSeversky v. Republic Aviation Corp E.
See also discussion as to the broad scope of discovery in Hoffman v. See the next-to-last paragraph of the Advisory Committee's Note to that amendment. Notes of Advisory Committee on Rules— Amendment The requirement that the plaintiff obtain leave of court in order to serve notice of taking of a deposition within 20 days after commencement of the action gives rises to difficulties when the prospective deponent is about to become unavailable for examination.
The problem is not confined to admiralty, but has been of special concern in that context because of the mobility of vessels and their personnel. When Rule 26 was adopted as Admiralty Rule 30A inthe problem was alleviated by permitting depositions de bene esse, for which leave of court is not required. A continuing study is being made in the effort to devise a modification of the day rule appropriate to both the civil and admiralty practice to the end that Rule 26 a shall state a uniform rule applicable alike to what are now civil actions and suits in admiralty.
Meanwhile, the exigencies of maritime litigation require preservation, for the time being at least, of the traditional de bene esse procedure for the post-unification counterpart of the present suit in admiralty. Accordingly, the amendment provides for continued availability of that procedure in admiralty and maritime claims within the meaning of Rule 9 h. Notes of Advisory Committee on Rules— Amendment A limited rearrangement of the discovery rules is made, whereby certain rule provisions are transferred, as follows: Existing Rule 26 a is transferred to Rules 30 a and 31 a.
Existing Rule 26 c is transferred to Rule 30 c. Existing Rules 26 deand f are transferred to Rule Revisions of the transferred provisions, if any, are discussed in the notes appended to Rules 30, 31, and In addition, Rule 30 b is transferred to Rule 26 c. The purpose of this rearrangement is to establish Rule 26 as a rule governing discovery in general. The reasons are set out in the Advisory Committee's explanatory statement.
Subdivision a —Discovery Devices. This is a new subdivision listing all of the discovery devices provided in the discovery rules and establishing the relationship between the general provisions of Rule 26 and the specific rules for particular discovery devices. The provision that the frequency of use of these methods is not limited confirms existing law.
- Rule 26. Duty to Disclose; General Provisions Governing Discovery
- The Motion to Compel: Think Tactically & Keep it Simple
It incorporates in general form a provision now found in Rule Subdivision b —Scope of Discovery. This subdivision is recast to cover the scope of discovery generally. It regulates the discovery obtainable through any of the discovery devices listed in Rule 26 a.
All provisions as to scope of discovery are subject to the initial qualification that the court may limit discovery in accordance with these rules.
Rule 26 c transferred from 30 b confers broad powers on the courts to regulate or prevent discovery even though the materials sought are within the scope of 26 band these powers have always been freely exercised. Similarly, the courts have in appropriate circumstances protected materials that are primarily of an impeaching character.
These two types of materials merely illustrate the many situations, not capable of governance by precise rule, in which courts must exercise judgment. The new subsections in Rule 26 d do not change existing law with respect to such situations.
Subdivision b 1 —In General. The language is changed to provide for the scope of discovery in general terms. The existing subdivision, although in terms applicable only to depositions, is incorporated by reference in existing Rules 33 and Since decisions as to relevance to the subject matter of the action are made for discovery purposes well in advance of trial, a flexible treatment of relevance is required and the making of discovery, whether voluntary or under court order, is not a concession or determination of relevance for purposes of trial.
Subdivision b 2 —Insurance Policies. Both cases and commentators are sharply in conflict on the question whether defendant's liability insurance coverage is subject to discovery in the usual situation when the insurance coverage is not itself admissible and does not bear on another issue on the case.
Examples of Federal cases requiring disclosure and supporting comments: Examples of Federal cases refusing disclosure and supporting comments: The division in reported cases is close. State decisions based on provisions similar to the federal rules are similarly divided. It appears to be difficult if not impossible to obtain appellate review of the issue.
Resolution by rule amendment is indicated. The question is essentially procedural in that it bears upon preparation for trial and settlement before trial, and courts confronting the question, however, they have decided it, have generally treated it as procedural and governed by the rules.
The amendment resolves this issue in favor of disclosure. Most of the decisions denying discovery, some explicitly, reason from the text of Rule 26 b that it permits discovery only of matters which will be admissible in evidence or appear reasonably calculated to lead to such evidence; they avoid considerations of policy, regarding them as foreclosed.
Some note also that facts about a defendant's financial status are not discoverable as such, prior to judgment with execution unsatisfied, and fear that, if courts hold insurance coverage discoverable, they must extend the principle to other aspects of the defendant's financial status. The cases favoring disclosure rely heavily on the practical significance of insurance in the decisions lawyers make about settlement and trial preparation.
Disclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation. It will conduce to settlement and avoid protracted litigation in some cases, though in others it may have an opposite effect.
The amendment is limited to insurance coverage, which should be distinguished from any other facts concerning defendant's financial status 1 because insurance is an asset created specifically to satisfy the claim; 2 because the insurance company ordinarily controls the litigation; 3 because information about coverage is available only from defendant or his insurer; and 4 because disclosure does not involve a significant invasion of privacy.
Thus, an insurance company must disclose even when it contests liability under the policy, and such disclosure does not constitute a waiver of its claim. It is immaterial whether the liability is to satisfy the judgment directly or merely to indemnify or reimburse another after he pays the judgment. Thus, the provision makes no change in existing law on discovery of indemnity agreements other than insurance agreements by persons carrying on an insurance business.
Similarly, the provision does not cover the business concern that creates a reserve fund for purposes of self-insurance. For some purposes other than discovery, an application for insurance is treated as a part of the insurance agreement. The provision makes clear that, for discovery purposes, the application is not to be so treated. The insurance application may contain personal and financial information concerning the insured, discovery of which is beyond the purpose of this provision.
In no instance does disclosure make the facts concerning insurance coverage admissible in evidence. Subdivision b 3 —Trial Preparation: Some of the most controversial and vexing problems to emerge from the discovery rules have arisen out of requests for the production of documents or things prepared in anticipation of litigation or for trial.
The existing rules make no explicit provision for such materials. In deciding the Hickman case, the Supreme Court appears to have expressed a preference in for an approach to the problem of trial preparation materials by judicial decision rather than by rule. Sufficient experience has accumulated, however, with lower court applications of the Hickman decision to warrant a reappraisal.
When the facts of the cases are studied, however, a distinction emerges based upon the type of materials. Commonwealth Oil Refining Co.
When lawyers have prepared or obtained the materials for trial, all courts require more than relevance; so much is clearly commanded by Hickman. In Guilford Nat'l Bank v. See also Mitchell v. United States, 32 F. These changes conform to the holdings of the cases, when viewed in light of their facts. Apart from trial preparation, the fact that the materials sought are documentary does not in and of itself require a special showing beyond relevance and absence of privilege.
The protective provisions are of course available, and if the party from whom production is sought raises a special issue of privacy as with respect to income tax returns or grand jury minutes or points to evidence primarily impeaching, or can show serious burden or expense, the court will exercise its traditional power to decide whether to issue a protective order.
On the other hand, the requirement of a special showing for discovery of trial preparation materials reflects the view that each side's informal evaluation of its case should be protected, that each side should be encouraged to prepare independently, and that one side should not automatically have the benefit of the detailed preparatory work of the other side.
Moreover, the language of the subdivision suggests the factors which the courts should consider in determining whether the requisite showing has been made. The importance of the materials sought to the party seeking them in preparation of his case and the difficulty he will have obtaining them by other means are factors noted in the Hickman case.
The courts should also consider the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents the production of which he seeks. Consideration of these factors may well lead the court to distinguish between witness statements taken by an investigator, on the one hand, and other parts of the investigative file, on the other. The court in Southern Ry. The analysis of the court suggests circumstances under which witness statements will be discoverable.
The witness may have given a fresh and contemporaneous account in a written statement while he is available to the party seeking discovery only a substantial time thereafter. Lanham, supra at —; Guilford, supra at Or he may be reluctant or hostile. Lanham, supra at —; Brookshire v. Ohio ; Diamond v. Or he may have a lapse of memory. Or he may probably be deviating from his prior statement. On the other hand, a much stronger showing is needed to obtain evaluative materials in an investigator's reports.
Lanham, supra at —; Pickett v. Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision. No change is made in the existing doctrine, noted in the Hickman case, that one party may discover relevant facts known or available to the other party, even though such facts are contained in a document which is not itself discoverable.
The Hickman case left this issue open since the statements in that case were taken by a lawyer. As to courts of appeals, compare Alltmont v. United States, F. Similarly, the district courts are divided on statements obtained by claim agents, compare, e. United States, 20 F. See 4 Moore's Federal Practice Guilford Nat'l Bank v.
Subdivision b 3 reflects the trend of the cases by requiring a special showing, not merely as to materials prepared by an attorney, but also as to materials prepared in anticipation of litigation or preparation for trial by or for a party or any representative acting on his behalf. The subdivision then goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories concerning the litigation of an attorney or other representative of a party. The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews.
In enforcing this provision of the subdivision, the courts will sometimes find it necessary to order disclosure of a document but with portions deleted. Rules 33 and 36 have been revised in order to permit discovery calling for opinions, contentions, and admissions relating not only to fact but also to the application of law to fact.
Under those rules, a party and his attorney or other representative may be required to disclose, to some extent, mental impressions, opinions, or conclusions.
But documents or parts of documents containing these matters are protected against discovery by this subdivision. Even though a party may ultimately have to disclose in response to interrogatories or requests to admit, he is entitled to keep confidential documents containing such matters prepared for internal use.
Party's Right to Own Statement. The cases are divided. Wilson Freight Forwarding Co. Courts which treat a party's statement as though it were that of any witness overlook the fact that the party's statement is, without more, admissible in evidence. Ordinarily, a party gives a statement without insisting on a copy because he does not yet have a lawyer and does not understand the legal consequences of his actions. Thus, the statement is given at a time when he functions at a disadvantage.
Discrepancies between his trial testimony and earlier statement may result from lapse of memory or ordinary inaccuracy; a written statement produced for the first time at trial may give such discrepancies a prominence which they do not deserve. In appropriate cases the court may order a party to be deposed before his statement is produced. Central Linen Service Co. Commentators strongly support the view that a party be able to secure his statement without a showing.
The following states have by statute or rule taken the same position: The definition is adapted from 18 U. The statement of a party may of course be that of plaintiff or defendant, and it may be that of an individual or of a corporation or other organization. Many, though not all, of the considerations supporting a party's right to obtain his statement apply also to the non-party witness.
Insurance companies are increasingly recognizing that a witness is entitled to a copy of his statement and are modifying their regular practice accordingly.
Subdivision b 4 —Trial Preparation: This is a new provision dealing with discovery of information including facts and opinions obtained by a party from an expert retained by that party in relation to litigation or obtained by the expert and not yet transmitted to the party.
The subdivision deals separately with those experts whom the party expects to call as trial witnesses and with those experts who have been retained or specially employed by the party but who are not expected to be witnesses.
It should be noted that the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness. Rule 37 c provides a sanction for the enforcement of Rule 36 dealing with requests for admission. Rule 36 provides the mechanism whereby a party may obtain from another party in appropriate instances either 1 and admission, or 2 a sworn and specific denial, or 3 a sworn statement "setting forth in detail the reasons why he cannot truthfully admit or deny.
Instead, Rule 37 c is intended to provide posttrial relief in the form of a requirement that the party improperly refusing the admission pay the expenses of the other side in making the necessary proof at trial. Rule 37 cas now written, addresses itself in terms only to the sworn denial and is silent with respect to the statement of reasons for an inability to admit or deny.
There is no apparent basis for this distinction, since the sanction provided in Rule 37 c should deter all unjustified failures to admit.
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
This omission in the rule has caused confused and diverse treatment in the courts. One court has held that if a party gives inadequate reasons, he should be treated before trial as having denied the request, so that Rule 37 c may apply.
Another has held that the party should be treated as having admitted the request. Still another has ordered a new response, without indicating what the outcome should be if the new response were inadequate. United States Plywood Corp. The amendment eliminates this defect in Rule 37 c by bringing within its scope all failures to admit.
Additional provisions in Rule 37 c protect a party from having to pay expenses if the request for admission was held objectionable under Rule 36 a or if the party failing to admit had reasonable ground to believe that he might prevail on the matter. The latter provision emphasizes that the true test under Rule 37 c is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail.
The scope of subdivision d is broadened to include responses to requests for inspection under Rule 34, thereby conforming to the new procedures of Rule Two related changes are made in subdivision d: Although Rule 37 d in terms provides for only three sanctions, all rather severe, the courts have interpreted it as permitting softer sanctions than those which it sets forth.
The rule is changed to provide the greater flexibility as to sanctions which the cases show is needed. The resulting flexibility as to sanctions eliminates any need to retain the requirement that the failure to appear or respond be "willful. Many courts have imposed sanctions without referring to willfulness. In addition, in view of the possibility of light sanctions, even a negligent failure should come within Rule 37 d.
If default is caused by counsel's ignorance of Federal practice, cf. Ohioor by his preoccupation with another aspect of the case, cf. United Packinghouse Workers, 26 F. Thus, the scheme conforms to Rule 37 b as construed by the Supreme Court in Societe Internationale v. A provision is added to make clear that a party may not properly remain completely silent even when he regards a notice to take his deposition or a set of interrogatories or requests to inspect as improper and objectionable.
If he desires not to appear or not to respond, he must apply for a protective order. The cases are divided on whether a protective order must be sought. El Paso Natural Gas Co. Compare also Rosenberg, supra, 58 Col. The party from whom discovery is sought is afforded, through Rule 26 ca fair and effective procedure whereby he can challenge the request made.
At the same time, the total non-compliance with which Rule 37 d is concerned may impose severe inconvenience or hardship on the discovering party and substantially delay the discovery process. The failure of an officer or managing agent of a party to make discovery as required by present Rule 37 d is treated as the failure of the party.
The rule as revised provides similar treatment for a director of a party. There is slight warrant for the present distinction between officers and managing agents on the one hand and directors on the other. Although the legal power over a director to compel his making discovery may not be as great as over officers or managing agents, Campbell v.
That a director's interests are normally aligned with those of his corporation is shown by the provisions of old Rule 26 d 2transferred to 32 a 2 deposition of director of party may be used at trial by an adverse party for any purpose and of Rule 43 b director of party may be treated at trial as a hostile witness on direct examination by any adverse party. Moreover, in those rare instances when a corporation is unable through good faith efforts to compel a director to make discovery, it is unlikely that the court will impose sanctions.
The change in the caption conforms to the language of 28 U.
Until recently, costs of a civil action could be awarded against the United States only when expressly provided by Act of Congress, and such provision was rarely made. To avoid any conflict with this doctrine, Rule 37 f has provided that expenses and attorney's fees may not be imposed upon the United States under Rule A major change in the law was made in80 Stat.
Costs are not to include the fees and expenses of attorneys. In light of this legislative development, Rule 37 f is amended to permit the award of expenses and fees against the United States under Rule 37, but only to the extent permitted by statute. The amendment brings Rule 37 f into line with present and future statutory provisions.
New Rule 26 f provides that if a discovery conference is held, at its close the court shall enter an order respecting the subsequent conduct of discovery. The amendment provides that the sanctions available for violation of other court orders respecting discovery are available for violation of the discovery conference order. Subdivision e is stricken. The subdivision otherwise duplicates Rule 45 e 2. New Rule 26 f imposes a duty on parties to participate in good faith in the framing of a discovery plan by agreement upon the request of any party.
This subdivision authorizes the court to award to parties who participate in good faith in an attempt to frame a discovery plan the expenses incurred in the attempt if any party or his attorney fails to participate in good faith and thereby causes additional expense. Rule 37 authorizes the court to direct that parties or attorneys who fail to participate in good faith in the discovery process pay the expenses, including attorney's fees, incurred by other parties as a result of that failure.
The Motion to Compel: Think Tactically & Keep It Simple ()
Since attorneys' fees cannot ordinarily be awarded against the United States 28 U. However, in the case of a government attorney who fails to participate in good faith in discovery, nothing prevents a court in an appropriate case from giving written notification of that fact to the Attorney General of the United States and other appropriate heads of offices or agencies thereof.
No substantive change is intended. This subdivision is revised to reflect the revision of Rule 26 arequiring disclosure of matters without a discovery request. Pursuant to new subdivision a 2 Aa party dissatisfied with the disclosure made by an opposing party may under this rule move for an order to compel disclosure.
In providing for such a motion, the revised rule parallels the provisions of the former rule dealing with failures to answer particular interrogatories. Such a motion may be needed when the information to be disclosed might be helpful to the party seeking the disclosure but not to the party required to make the disclosure.
If the party required to make the disclosure would need the material to support its own contentions, the more effective enforcement of the disclosure requirement will be to exclude the evidence not disclosed, as provided in subdivision c 1 of this revised rule.
Language is included in the new paragraph and added to the subparagraph B that requires litigants to seek to resolve discovery disputes by informal means before filing a motion with the court. This requirement is based on successful experience with similar local rules of court promulgated pursuant to Rule The last sentence of paragraph 2 is moved into paragraph 4. Under revised paragraph 3evasive or incomplete disclosures and responses to interrogatories and production requests are treated as failures to disclose or respond.
Interrogatories and requests for production should not be read or interpreted in an artificially restrictive or hypertechnical manner to avoid disclosure of information fairly covered by the discovery request, and to do so is subject to appropriate sanctions under subdivision a. Revised paragraph 4 is divided into three subparagraphs for ease of reference, and in each the phrase "after opportunity for hearing" is changed to "after affording an opportunity to be heard" to make clear that the court can consider such questions on written submissions as well as on oral hearings.
Subparagraph A is revised to cover the situation where information that should have been produced without a motion to compel is produced after the motion is filed but before it is brought on for hearing. The rule also is revised to provide that a party should not be awarded its expenses for filing a motion that could have been avoided by conferring with opposing counsel.
Subparagraph C is revised to include the provision that formerly was contained in subdivision a 2 and to include the same requirement of an opportunity to be heard that is specified in subparagraphs A and B. The revision provides a self-executing sanction for failure to make a disclosure required by Rule 26 awithout need for a motion under subdivision a 2 A. Paragraph 1 prevents a party from using as evidence any witnesses or information that, without substantial justification, has not been disclosed as required by Rules 26 a and 26 e 1.
This automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, such as one under Rule As disclosure of evidence offered solely for impeachment purposes is not required under those rules, this preclusion sanction likewise does not apply to that evidence.
Limiting the automatic sanction to violations "without substantial justification," coupled with the exception for violations that are "harmless," is needed to avoid unduly harsh penalties in a variety of situations: In the latter situation, however, exclusion would be proper if the requirement for disclosure had been called to the litigant's attention by either the court or another party. Preclusion of evidence is not an effective incentive to compel disclosure of information that, being supportive of the position of the opposing party, might advantageously be concealed by the disclosing party.
However, the rule provides the court with a wide range of other sanctions—such as declaring specified facts to be established, preventing contradictory evidence, or, like spoliation of evidence, allowing the jury to be informed of the fact of nondisclosure—that, though not self-executing, can be imposed when found to be warranted after a hearing. The failure to identify a witness or document in a disclosure statement would be admissible under the Federal Rules of Evidence under the same principles that allow a party's interrogatory answers to be offered against it.
This subdivision is revised to require that, where a party fails to file any response to interrogatories or a Rule 34 request, the discovering party should informally seek to obtain such responses before filing a motion for sanctions. The last sentence of this subdivision is revised to clarify that it is the pendency of a motion for protective order that may be urged as an excuse for a violation of subdivision d. If a party's motion has been denied, the party cannot argue that its subsequent failure to comply would be justified.
In this connection, it should be noted that the filing of a motion under Rule 26 c is not self-executing—the relief authorized under that rule depends on obtaining the court's order to that effect. This subdivision is modified to conform to the revision of Rule 26 f. Committee Notes on Rules— Amendment Subdivision c 1. When this subdivision was added in to direct exclusion of materials not disclosed as required, the duty to supplement discovery responses pursuant to Rule 26 e 2 was omitted.
There is no obvious occasion for a Rule 37 a motion in connection with failure to supplement, and ordinarily only Rule 37 c 1 exists as rule-based authority for sanctions if this supplementation obligation is violated. The amendment explicitly adds failure to comply with Rule 26 e 2 as a ground for sanctions under Rule 37 c 1including exclusion of withheld materials.
The rule provides that this sanction power only applies when the failure to supplement was "without substantial justification. The Advisory Committee recommends that the published amendment proposal be modified to state that the exclusion sanction can apply to failure "to amend a prior response to discovery as required by Rule 26 e 2.
Committee Notes on Rules— Amendment Subdivision f. Subdivision f is new. It focuses on a distinctive feature of computer operations, the routine alteration and deletion of information that attends ordinary use. Many steps essential to computer operation may alter or destroy information, for reasons that have nothing to do with how that information might relate to litigation. As a result, the ordinary operation of computer systems creates a risk that a party may lose potentially discoverable information without culpable conduct on its part.
Under Rule 37 fabsent exceptional circumstances, sanctions cannot be imposed for loss of electronically stored information resulting from the routine, good-faith operation of an electronic information system. Rule 37 f applies only to information lost due to the "routine operation of an electronic information system"—the ways in which such systems are generally designed, programmed, and implemented to meet the party's technical and business needs.
The "routine operation" of computer systems includes the alteration and overwriting of information, often without the operator's specific direction or awareness, a feature with no direct counterpart in hard-copy documents. Such features are essential to the operation of electronic information systems. Rule 37 f applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party's intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation.
A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement of Rule 37 f means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve.
When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a "litigation hold.
Whether good faith would call for steps to prevent the loss of information on sources that the party believes are not reasonably accessible under Rule 26 b 2 depends on the circumstances of each case. One factor is whether the party reasonably believes that the information on such sources is likely to be discoverable and not available from reasonably accessible sources.
The protection provided by Rule 37 f applies only to sanctions "under these rules. This rule restricts the imposition of "sanctions. For example, a court could order the responding party to produce an additional witness for deposition, respond to additional interrogatories, or make similar attempts to provide substitutes or alternatives for some or all of the lost information.
Changes Made after Publication and Comment. The published rule barred sanctions only if the party who lost electronically stored information took reasonable steps to preserve the information after it knew or should have known the information was discoverable in the action.
A footnote invited comment on an alternative standard that barred sanctions unless the party recklessly or intentionally failed to preserve the information. The present proposal establishes an intermediate standard, protecting against sanctions if the information was lost in the "good faith" operation of an electronic information system.
The present proposal carries forward a related element that was a central part of the published proposal—the information must have been lost in the system's "routine operation. The change to a good-faith standard is accompanied by addition of a provision that permits sanctions for loss of information in good- faith routine operation in "exceptional circumstances.
As published, the rule included an express exception that denied protection if a party "violated an order in the action requiring it to preserve electronically stored information.
The revised Committee Note observes that violation of an order is an element in determining whether a party acted in good faith. The revised proposal broadens the rule's protection by applying to operation of "an" electronic information system, rather than "the party's" system.
The change protects a party who has contracted with an outside firm to provide electronic information storage, avoiding potential arguments whether the system can be characterized as "the party's. The Committee Note is changed to reflect the changes in the rule text. The changes from the published version of the proposed rule text are set out below. These changes are intended to be stylistic only.
Changes Made After Publication and Comment. See Note to Rule 1, supra. Committee Notes on Rules— Amendment Rule 37 b is amended to conform to amendments made to Rule 45, particularly the addition of Rule 45 f providing for transfer of a subpoena-related motion to the court where the action is pending. A second sentence is added to Rule 37 b 1 to deal with contempt of orders entered after such a transfer.
The Rule 45 f transfer provision is explained in the Committee Note to Rule No changes were made after publication and comment. Effective Date of Amendment Amendment by Pub.
Committee Notes on Rules— Amendment Subdivision a. Rule 37 a 3 B iv is amended to reflect the common practice of producing copies of documents or electronically stored information rather than simply permitting inspection. Present Rule 37 eadopted inprovides: Federal circuits have established significantly different standards for imposing sanctions or curative measures on parties who fail to preserve electronically stored information. These developments have caused litigants to expend excessive effort and money on preservation in order to avoid the risk of severe sanctions if a court finds they did not do enough.
New Rule 37 e replaces the rule. It authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. It therefore forecloses reliance on inherent authority or state law to determine when certain measures should be used.
The new rule applies only to electronically stored information, also the focus of the rule. It applies only when such information is lost. Because electronically stored information often exists in multiple locations, loss from one source may often be harmless when substitute information can be found elsewhere. The new rule applies only if the lost information should have been preserved in the anticipation or conduct of litigation and the party failed to take reasonable steps to preserve it.
Many court decisions hold that potential litigants have a duty to preserve relevant information when litigation is reasonably foreseeable. Rule 37 e is based on this common-law duty; it does not attempt to create a new duty to preserve. The rule does not apply when information is lost before a duty to preserve arises. In applying the rule, a court may need to decide whether and when a duty to preserve arose.
Courts should consider the extent to which a party was on notice that litigation was likely and that the information would be relevant. A variety of events may alert a party to the prospect of litigation. Often these events provide only limited information about that prospective litigation, however, so that the scope of information that should be preserved may remain uncertain.
It is important not to be blinded to this reality by hindsight arising from familiarity with an action as it is actually filed. Although the rule focuses on the common-law obligation to preserve in the anticipation or conduct of litigation, courts may sometimes consider whether there was an independent requirement that the lost information be preserved. The court should be sensitive, however, to the fact that such independent preservation requirements may be addressed to a wide variety of concerns unrelated to the current litigation.
The fact that a party had an independent obligation to preserve information does not necessarily mean that it had such a duty with respect to the litigation, and the fact that the party failed to observe some other preservation obligation does not itself prove that its efforts to preserve were not reasonable with respect to a particular case.