IntroductionFollowing implementation of the amendments to Federal Rule of Civil Procedure 26(b) in December 2015, several commenters predicted that 2016 would be “the year of proportionality.” Of course, “proportionality is the new black” has been a recurrent refrain in the world of civil discovery for years, and proportionality has had an explicit—albeit all too often understated—role to play in discovery under the Federal Rules since 1983.

Image: Kaylee Walstad, EDRM“ESI Protocols” are discussed in judicial opinions, articles, webinars, and blogs. They are flexible and useful; however, they may not meet all of the requirements of Fed.R.Civ.P. 26(f). After a Rule 26(f) conference, that Rule requires a “report” with a “discovery plan” that contains information that may not be in an ESI Protocol.A “discovery plan” includes all aspects of an ESI Protocol; however, an ESI Protocol may not suffice as a “discovery plan.”I agree that a tailored, written agreement – – an “ESI Protocol” – – is almost always a good idea and these are really good frameworks. However, depending on the content, if there has been a Rule 26(f) conference, more may be needed.Michael Berman.Some (like me) favor ESI Protocols and suggest that they are almost-always necessary or appropriate. Others wish to banish them, viewing them as costly, delaying devices that lead to incessant negotiations with little accomplished.Some suggest that they should be incorporated into a court order. Others view that as the first step down the road to sanctions.Some say that, once signed, they are carved in stone. Others (like me) view them as interlocutory orders or agreements tha

The Cole’s Wexford opinion provides a thorough dissection of the history and past iterations of Rule 26 and a clear explanation of the status of the current rule as amended in 2015. Judge Joy Flowers Conti, chief district judge of the U.S. District Court in the Western District of Pennsylvania, addressed the question of relevancy under amended Federal Rule of Civil Procedure 26 in this September 2016 decision involving a discovery dispute between Cole’s Wexford Hotel and Highmark (Cole’s Wexford Hotel v. Highmark, 2016 WL 5025751 (W.D. Pa. Sept. 20, 2016). In her decision, Judge Conti criticized the continued post-amendment reliance on the broad relevancy benchmark of Oppenheimer, writing that “discovery requests are not relevant simply because there is a possibility that the information may be relevant to the general subject matter of the action.”

Federal Rule of Civil Procedure 26(a)(2) outlines two different sets of pretrial disclosure requirements, imposing more onerous requirements on “retained” than “non-retained” experts. Relatedly, when non-retained expert witnesses offer opinions based on information obtained outside the scope of their personal involvement in the facts of the case, most courts require them to submit a full Rule 26(a)(2)(B) report. See, e.g., Goodman v. Staples The Office Superstore LLC, 644 F.3d 817, 826 (9th Cir. 2011). Thus, for example, a physician who provided care to a personal injury plaintiff is treated as a retained expert for disclosure purposes when he or she bases a causation opinion on materials provided by an attorney and reviewed as part of the litigation. Some courts, taking this rationale a step further, have required all experts who opine on certain topics – for example, causation – to submit a full Rule 26(a)(2)(B) report. See, e.g., Muzaffarr v. Ross Dress for Less, Inc., 2013 WL 3850848 (S.D. Fla. July 26, 2013). But accord

On August 4, 2023, in Cedant v. United States, No. 21-12661, –F.4th–, 2023 WL 4986402 (11th Cir. August 4, 2023), the Eleventh Circuit clarified who must provide expert reports under Fed. R. Civ. P. 26(a)(2)(B). More specifically, the Court clarified what it means to be “retained or specially employed to provide expert testimony” under Rule 26(a)(2)(B).1. A primer on expert reports and disclosures under Rule 26. Federal Rule of Civil Procedure 26 provides the rules for disclosures during civil litigation and the general provisions governing discovery.Rule 26(a)(2) provides for disclosures related to expert testimony. Under 26(a)(2)(B), “if the witness is one retained or specially employed to provide expert testimony in the case…,” then the expert must provide a written report containing the information required at 26(a)(2)(B)(i)-(vi). This written report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all publications authored in the previo

It requires that an agreed proposed case management order be filed three business days before the Initial Case Management Conference.Third, under Rule 26(d) of the Federal Rules of Civil Procedure, parties may not serve written discovery until they have conferred about discovery pursuant to Rule 26(f). See Fed. R. Civ. P. 26(d)(1). Under the Tennessee Rules of Civil Procedure, plaintiffs can and often do serve written discovery simultaneously with the Complaint and Summons.

THIS ARTICLE ORIGINALLY APPEARED HERE IN VOL. 12 NO. 3 OF PRO TE: SOLUTIO.In 2010, Fed. R. Civ. P. 26 was amended to require full expert reports and other disclosures for retained expert witnesses, but only summaries of anticipated opinion testimony of non-retained experts. During the ensuing nine years, courts have weighed in on the distinctions between retained experts and non-retained experts.

adversary proceedings. See Fed. R. Bankr. P. Part VII (applying FRCP to adversary proceedings) and Rule 9014(c) (applying FRCP to most contested matters). While not intended to be a comprehensive analysis, below are some key considerations for bankruptcy practitioners navigating the amended rules. Practitioners should bear in mind, generally, that the goal of the 2015 amendments to the Federal Rules is to refocus parties and their counsel on the merits of each case and restore confidence in the litigation process as an efficient means of resolving disputes. See FRCP 1, Advisory Comm. Note (“discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay”).Proportionality – A New Limit on the Scope of Discovery, Perhaps The most notable change is to the scope of discovery under Rule 26(b), which is now expressly limited by the concept of proportionality. See FRCP 26(b). The redline below shows the extensive changes to this provision. (Click for Larger Image) At least one court has concluded that the addition of the proportionality requirement has not changed the scope of discovery, concluding that the amendments to the rules simply moved the limitations on discovery formerly found in Rule 26(b)(2)(C) into the definition of the scope of discovery in current Rule 26(b)(2)(1). See Gowan v. Mid Century Insur. Co., 2016 WL 126746, at *5 (D. S.D. Jan. 11, 2016). However, that reading of the amendment is inconsistent with the fact that the amendment does not just provide a means to limit discovery after it has been issued, but limits the permissible scope of the discovery that can be requested in the first instance by requiring the requesting party to self-regulate the proportionality of discovery requests. See Elliott v. Superior Pool Prod., LLC, 2016 WL 29243, at *2 (D. C.D. Ill. Jan. 4, 2016) (“The comments to the 2015 amendments indicate that the 201

E-Discovery UpdateThis Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:a Southern District of Florida order denying plaintiff’s spoliation sanctions motion finding that the defendant had not deleted text messages intentionally or in bad faith and that the plaintiff was not prejudiced by the deletion of the text messages a Northern District of Indiana decision granting a party’s motion to compel the production of settlement negotiation documents as relevant and proportional to the issues in the case under amended Fed. R. Civ. P. 26(b)(1) an Eastern District of Missouri case granting a motion to compel plaintiff to produce a “Download Your Info” report from her Facebook account, rejecting claims of overbreadth and burden a Northern District of Illinois case granting in part a motion to dismiss claims brought by a former employee relating to the employer’s use of her work computer to access her personal email account after she left the company 1. In Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., 2016 WL 1105297 (S.D. Fla. Mar. 22, 2016), the court denied plaintiff’s motion for spoliation sanctions, finding that the defendant had not deleted text messages intentionally or in bad faith and that the plaintiff was not prejudiced by the deletion of the text messages.

Michael G. BradySource: FBA Newsletter As many federal court practitioners are aware, Federal Rules of Civil Procedure 8, 26, 56 and Illustrative Form 52 were amended as of December 1, 2010. These amendments govern all proceedings filed on or after December 1, and will also govern all previously pending proceedings "insofar as just and practicable." 4/28/10 Supreme Court Order; 28 U.S.C. 2074(a). This article will focus on Rules 26 and 56, which contain the most significant changes. Rule 26:Rule 26 was amended to apply work-product protection to testifying expert draft reports and, with three important exceptions, communications between certain expert witnesses and counsel. The rule also makes clear that attorneys relying on experts who are not specifically required to provide a Rule 26(a)(2)(B) report must provide a more limited disclosure. Rules 26(a)(2)(B) and (C) clarify that non-Rule 26(a)(2)(B) testifying experts must only provide an abbreviated disclosure Rule 26(a)(2)(B) had previously provided that a written report must be provided by any witness "retained or specially employed to provide expert te