Are Efforts To Reduce The Scope And Costs Of Discovery Working?

Once a lawsuit gets underway, litigation lawyers start gathering information relating to the lawsuit. This investigative process is known as “discovery” because it allows parties to the lawsuit to find facts and documents that may previously have been unknown. As any recent business or real estate litigant knows, the scope and costs associated with responding to a document discovery request in the digital age has become overly time-consuming and expensive. Understandably, clients want to assert that certain requests seek documents not relevant to the pending litigation. However, the scope of discovery both in state and federal courts historically has been broadly defined. In Oregon state courts, for example, Oregon Rule of Civil Procedure (ORCP) 36B(1) states that: 

“It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” 

The emphasized phrase invites broad discovery, which can result in significant time and expense. That same phrase was included within the parallel federal court rules for decades, until relatively recently. On December 1, 2015, all federal courts, including those in Oregon, made a significant amendment in an effort to reduce the scope and costs of discovery. The language “reasonably calculated to lead to the discovery of admissible evidence” was deleted from Federal Rule 26(b) and replaced in part with a limitation that discovery must be “proportional to the needs of the case.” 

The amendments to the federal court rules went further. As to Federal Rule 37(e), regarding sanctions against a party for inadvertently allowing destruction (“spoliation”) of Electronically Stored Information (ESI), federal courts are now prohibited from relying on inherent authority when imposing spoliation sanctions and are therefore limited as to when the most severe forms of sanctions can be imposed when ESI is lost or destroyed.

Despite a year and a half of federal court litigation under the new rules, it is still too early to tell whether these rule revisions will cause a reduction in discovery costs by reducing the scope of discovery and ESI preservation efforts. Decisions interpreting the new rule, however, are promising, especially with respect to the risk of negligent spoliation. The risk continues to exist, but the inclusion of a proportionality test provides some relief to those that take reasonable efforts to protect their ESI. If the federal court amendments prove successful, which it appears they will, Oregon and other states will likely consider similar amendments for state court rules. 

Mark Reinecke is a civil litigation attorney representing clients involved in business and real property disputes, collection matters, contested wills, trusts, guardianships and conservatorships and a variety of water issues including permitting, adjudications, legislation and general counsel for irrigation districts.  Mark has represented clients in more than half of Oregon’s 36 counties as well as the Oregon Court of Appeals, the Federal District Court for Oregon, the Confederated Tribes of Warm Springs Tribal Court and the Ninth Circuit Court of Appeals in San Francisco. 

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