This document summarizes changes to Minnesota and proposed federal discovery rules focusing on proportionality, disclosure, collaboration and informality. Key points include: - Minnesota amended rules in 2013 to make proportionality the central principle and require narrower discovery. Rules encourage early meet and confer, disclosure and resolving motions informally. - Proposed federal rules changes in 2015 aim to reduce cost and delay by strengthening proportionality, requiring disclosure and cooperation between parties on discovery plans. - Case law highlights importance of preserving ESI, adequately preparing witnesses, timely raising privilege and ensuring discovery positions are supported to avoid sanctions.

1. A Year of Change
2013 Minnesota State and Federal E-Discovery
Law Update
September 9, 2013

2. Minnesota’s Amended Discovery Rules
PROPORTIONALITY
MORE DISCLOSURE
COLLABORATION AND INFORMALITY

3. Minnesota Amends Discovery Rules (link)
Amended rules have made proportionality a
central guiding principle for all civil litigation in
Minnesota.
This is based on Civil Justice Reform Task
Force recommendations. (link)

4. Civil Justice Reform Task Force
Takeaways:
● Discovery big reason for cost of litigation.
(link)
● Changes intended to “create a presumption
of narrower discovery and require
consideration of proportionality in all
discovery matters...” (link)
● discovery & expense threaten the civil
justice system; proportionality is probably
one of the most important changes. (link)

5. Rule 1 “just, speedy, and inexpensive” (link)
Responsibility of &
Based on:
needs of the case
amount in controversy
parties’ resources
complexity and importance of issues

6. More Disclosure

7. Rule 26.02: Narrower Scope of Discovery (link)
Discovery limited to proving or disproving
Claim
Defense
OR
Impeaching a witness

8. More Disclosure

9. Rule 26.01 -- New Disclosures (link)
Initial Disclosures
Expert Disclosures
Pretrial Disclosures

10. Rule 37.03: Sanctions for non-disclosure (link)
If party fails to disclose information or
witnesses, the court may
Preclude information or witness
Money sanction
Inform jury of failure
Order “other appropriate sanctions”

11. Collaboration and Informality

12. Rule 26.06 -- Meet and Confer
Parties must meet and confer on discovery
as soon as “practicable” and no
more than 30 days after answer due
date,
and then
file a discovery plan
or else risk being sanctioned

13. Rule 115.04
Motions to Compel
Court may resolve motions to compel through
an informal telephonic conference with the
court.

14. Minnesota State and Federal Case Law Update

15. Sanctions

16. Proposed Amendments to Federal Civil Rules
● These could go into effect in 2015.
● In 2010, Duke Conference proposed ideas for
reducing cost and delay in civil litigation.
● In April 2013, the Advisory Committee on
Civil Rules submitted a report regarding
proposed changes [link].
● In August 2013, the Judicial Conference of
the United States submitted a preliminary
draft of amendments to the Federal Rules of
Civil Procedure [link]. Link to section discussing proposed changes

17. Default for Discovery Violations
Aviva v. Fingerhut (Jan. 8, 2013)
Takeaways
● Discovery mistakes start small, end big.
● Attorney’s hands-off approach to difficult
client often backfires.
● Once attorney loses credibility with the
court, it is very hard to get it back.

18. You Gotta Talk! (link to rule)
(compare with committee’s proposed changes and comments)

19. Rule 26(d) -- Meet and Confer (link)
(Compare with committee’s proposed changes and comments [link])

20. Rule 26(g) -- Know the answer
Link to
proposed
rule
Link to current rule

21. Failure to Produce
Fields v. Emmerich (Anoka County District Court, Dec.
11, 2012)
Defs intentionally violated duty to disclose and
their counsel failed to adequately investigate
Takeaways
● Rule 26.07 (link) is Rule (link) 11.02 of discovery!
● Can’t hide behind a vendor
● Can’t hand the wheel to your client

22. Spoliation
Multifeeder Technology v. British
Confectionery (D. Minn. Sept. 18, 2012)
Takeaways
● Attorneys should use a discovery tool to
prevent rogue client from deleting data.
● Lost evidence can be a black box that can
contain whatever the opposing counsel
wants it to.
● Might be good idea to bring in a neutral
early.

23. Adverse Inference -- Intentional
Takeaways
● Use witness testimony carefully to show
culpable -- or innocent -- state of mind.
● Tell opposing counsel what documents you
want preserved -- the sooner, the better.
● Consider creative sanctions, such as motions
in limine.
Sherman v.
Rinchem (8th Cir.
Aug. 6, 2012)

24. Adverse Inference -- Negligence
Sekisui v. Hart
(S.D. NY Aug. 15, 2013)
(case infographic [link])
Takeaways
● Important that IT and attorneys
communicate.
● Make sure what you tell opposing counsel
and the court is correct.
● Attempt to quantify and specify what data
was lost.

25. Attorney’s Discovery Duties

26. Responding to Requests for Admissions
Bach v. Life Mortgage (Minn. Ct. Appeals, May
6, 2013) (unpublished)
Takeaways
● Make sure that you have good grounds to
deny RFA under Rule 36 (link).
● A qualified denial is not enough to escape
sanctions.
● Responses may have violated Minn. R. Civ.
P. 26.07 (link).

27. Link to
current
rule
Link to
proposed
rule

28. Rule 30(b)(6) Deponent Fail
Aviva Sports v. Fingerhut (D. Minn. July 23,
2013)
Takeaways
● A poorly prepared corporate representative
can sink your case.
● Difficult clients do not absolve attorney of
duty to court.
● “Empty head, pure heart” defense doesn’t cut
it.

29. Privilege Log
S.E.C. v. Welliver (D. Minn. Oct. 26, 2012)
Delay in raising claim of inadvertent disclosure
caused waiver

30. Scope of Discovery

31. Compare with
committee
proposed rule
and comments
Current
Rule

32. Link to current rule Link to proposed rule
and comments

33. Redaction and Relevance
Burris v. Versa Products (D. Minn. Feb. 19,
2013)
Takeaways
● Make sure discovery positions are supported
by statute and case law.
● Protect confidential info through protective
order rather than redaction.
● Taking unreasonable positions alienates the
court.

34. Link to
current rule Link to proposed
rule

35. Rule 26(c) -- Protective Order, not redaction
Detailed Rule 26(c)
Infographic (link)
Link to
current
rule
Link to
proposed
rule