NuVasive, Inc. v. Madsen Med., Inc. - JD Supra
Amended Rules Five Months Later: Early Trends in Case Law with Views from a Judge, and Inhouse and Outside Counsel
Today’s Panel
Brad Harris VP of Products, Zapproved
Hon. James Francis United States Magistrate Judge, Southern District of New York
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Brian Corbin Vice President, Assistant General Counsel, JPMorgan Chase & Co.
William Butterfield Partner, Hausfeld LLP
Agenda » » » »
Overview of the Amended Rules Rule 26(b)(1) – Proportionality Rule 37(e) – Spoliation and Sanctions Key Takeaways
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Rule 1. Scope and Purpose These rules… should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.
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Rule 26 & Proportionality Rule 26 (b) (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
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Gilead Sciences, Inc. v. Merck & Co. “This is untenable…. [The defendant’s] request is precisely the kind of disproportionate discovery that Rule 26 – old or new – was intended to preclude.” “…a party seeking discovery of relevant, non-privileged information must show, before anything else, that the discovery sought is proportional to the needs of the case.” Gilead Sciences, Inc. v. Merck & Co., Inc., No. 5:13-cv-04057-BLF, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016) 6
In re Takata Airbag Prods. Liab. Litigation “The recently amended Rule 26(b)(1) ‘…crystallizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.’” (Chief Justice John Roberts) “…a party is not entitled to receive every piece of relevant information.” In re Takata Airbag Prods. Liab. Litig., No. 15-02599-CIV-Moreno, MDL No. 5-2599 (S.D. Fla. Mar. 1, 2016) 7
Carr v. State Farm Mutual Auto. Ins. Co. “Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality.”
Carr v. State Farm Mut. Auto. Ins. Co., No.3:15-cv-1026-M, 2015 WL 8010920 (N.D. Tex. Dec. 7, 2015) 8
Rule 37 & Sanctions (e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. 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 the information, and the information cannot be restored or replaced through additional discovery, the court may: (1) Upon finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice; (2) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation, (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.
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CAT3, LLC v. Black Lineage, Inc. “The sanctions motion now pending in this case raises significant issues concerning the reach of newly amended Rule 37(e) of the Federal Rules of Civil Procedure, the standard of proof governing spoliation, and the relief appropriate for destruction of electronically stored information (“ESI”).” CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (AT) (JCF), 2016 WL 154116 (S.D.N.Y. Jan. 12, 2016). 10
NuVasive, Inc. v. Madsen Med., Inc. “In its prior orders, … the Court found that NuVasive was at fault for not enforcing compliance with the litigation hold. The record does not support a finding of intentional spoliation by NuVasive. Therefore, under Rule 37(e), as amended, it would not be proper for the Court to give the adverse inference instruction.” NuVasive, Inc. v. Madsen Med., Inc. No. 13cv2077 (BTM)(RBB), 2016 WL 305096 (S.D. Cal. Jan. 26, 2016). 11
Marten Transport v. Plattform Advertising “In revising Rule 37(e), the Advisory Committee expressly instructed that "reasonable steps" to preserve ESI suffice; the Rule "does not call for perfection."
Marten Transport, Ltd. v. Plattform Advertising, Inc., No. 14-02464 (D. Kan., Feb. 8, 2016). 12
Key Takeaways » Perception is reality » Use cooperation to your advantage » Be proactive with preservation and scope of discovery discussions » Specificity and objectivity are critical to arguing successfully under the amended rules » Tackle potential issues early » Act reasonably, and document your actions » Greater consistency and predictability, but still with broad authority 13
» Questions
Conference on Preservation Excellence September 14-15, 2016 Portland Art Museum, Portland, OR Register at www.prex16.com
15
www.zapproved.com/ resources
Thank you for attending today!
Today’s Panel
Brad Harris VP of Products, Zapproved
Hon. James Francis United States Magistrate Judge, Southern District of New York
2
Brian Corbin Vice President, Assistant General Counsel, JPMorgan Chase & Co.
William Butterfield Partner, Hausfeld LLP
Agenda » » » »
Overview of the Amended Rules Rule 26(b)(1) – Proportionality Rule 37(e) – Spoliation and Sanctions Key Takeaways
3
Rule 1. Scope and Purpose These rules… should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.
4
Rule 26 & Proportionality Rule 26 (b) (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
5
Gilead Sciences, Inc. v. Merck & Co. “This is untenable…. [The defendant’s] request is precisely the kind of disproportionate discovery that Rule 26 – old or new – was intended to preclude.” “…a party seeking discovery of relevant, non-privileged information must show, before anything else, that the discovery sought is proportional to the needs of the case.” Gilead Sciences, Inc. v. Merck & Co., Inc., No. 5:13-cv-04057-BLF, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016) 6
In re Takata Airbag Prods. Liab. Litigation “The recently amended Rule 26(b)(1) ‘…crystallizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.’” (Chief Justice John Roberts) “…a party is not entitled to receive every piece of relevant information.” In re Takata Airbag Prods. Liab. Litig., No. 15-02599-CIV-Moreno, MDL No. 5-2599 (S.D. Fla. Mar. 1, 2016) 7
Carr v. State Farm Mutual Auto. Ins. Co. “Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality.”
Carr v. State Farm Mut. Auto. Ins. Co., No.3:15-cv-1026-M, 2015 WL 8010920 (N.D. Tex. Dec. 7, 2015) 8
Rule 37 & Sanctions (e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. 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 the information, and the information cannot be restored or replaced through additional discovery, the court may: (1) Upon finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice; (2) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation, (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.
9
CAT3, LLC v. Black Lineage, Inc. “The sanctions motion now pending in this case raises significant issues concerning the reach of newly amended Rule 37(e) of the Federal Rules of Civil Procedure, the standard of proof governing spoliation, and the relief appropriate for destruction of electronically stored information (“ESI”).” CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (AT) (JCF), 2016 WL 154116 (S.D.N.Y. Jan. 12, 2016). 10
NuVasive, Inc. v. Madsen Med., Inc. “In its prior orders, … the Court found that NuVasive was at fault for not enforcing compliance with the litigation hold. The record does not support a finding of intentional spoliation by NuVasive. Therefore, under Rule 37(e), as amended, it would not be proper for the Court to give the adverse inference instruction.” NuVasive, Inc. v. Madsen Med., Inc. No. 13cv2077 (BTM)(RBB), 2016 WL 305096 (S.D. Cal. Jan. 26, 2016). 11
Marten Transport v. Plattform Advertising “In revising Rule 37(e), the Advisory Committee expressly instructed that "reasonable steps" to preserve ESI suffice; the Rule "does not call for perfection."
Marten Transport, Ltd. v. Plattform Advertising, Inc., No. 14-02464 (D. Kan., Feb. 8, 2016). 12
Key Takeaways » Perception is reality » Use cooperation to your advantage » Be proactive with preservation and scope of discovery discussions » Specificity and objectivity are critical to arguing successfully under the amended rules » Tackle potential issues early » Act reasonably, and document your actions » Greater consistency and predictability, but still with broad authority 13
» Questions
Conference on Preservation Excellence September 14-15, 2016 Portland Art Museum, Portland, OR Register at www.prex16.com
15
www.zapproved.com/ resources
Thank you for attending today!
