On December 1, 2015, the amendment package that revised Federal Rules of Civil Procedures, Rules 1, 4, 16, 26, 30, 31, 33, 34, and 37, went into effect. This Note offers a first look at the new amendments to the discovery tools of the Federal Rules of Civil Procedure in light of recent constitutional arguments, specifically the scope of discovery under Rule 26(b)(1) and the duty to preserve electronically stored information under Rule 37(e). First, this Note seeks to identify the constitutional challenges to American discovery. Second, this Note seeks to compare the American discovery system with the European discovery system as background for the evolution of the American rules. Third, this Note seeks to outline how the rulemakers have recalibrated discovery to restrain overuse and abuse in the past. Fourth, this Note seeks to explain the response rulemakers chose in emphasizing the need for recalibration. Fifth, this Note seeks to highlight the immediate effects of the recent amendments to Rule 26(b)(1)'s proportionality and where the constitutional challenges stand now. Sixth, this Note seeks to discuss the impact the revisions to Rule 37(e) has on sanctions for violating the duty to preserve electronic discovery. Finally, this Note concludes that the recent amendments safeguard litigants from due process violations by restricting the available use of overly broad discovery requests.
The Evolution of American Discovery in Light of Constitutional Challenges: The Role of the 2015 Rule Amendments to the Federal Rules of Civil Procedure,
44 Hastings Const. L.Q. 225
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol44/iss2/4