Various amendments to the Federal Rules of Civil Procedure are taking effect on December 1. Here are my thoughts on how these amendments may impact the defense of class actions:

  • Greater Emphasis on Proportionality: The new Rule 26(b)(1) will expressly limit discovery to that which is “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.” While class actions are generally large and important cases, they can vary widely in the amount in controversy, for example. Defendants can use this change as an important new tool in seeking to limit the scope of the discovery they are burdened with in class actions.
  • Cost-Sharing: The new Rule 26(c)(1)(B) has an express provision for a protective order directing cost sharing for discovery. It will be interesting to see how courts apply this in class actions when defendants seek to shift costs to the named plaintiffs or their counsel (who almost always are funding the litigation).
  • Preservation of Evidence and Clawback Agreements: The new Rule 16 suggests that the initial scheduling order include a provision with respect to preservation of electronically stored information (ESI) and a provision with respect to a clawback agreement under Fed. R. Evid. 502 for inadvertent disclosure of privileged material. These are sometimes but not always included in initial scheduling orders, and generally desirable to have, so that the defendant can be assured that the scope of its litigation hold in a class action is court-approved early in the case.
  • Document Productions: The new Rule 34 allows a party objecting and responding to a document request to specify “another reasonable time” for producing the responsive documents. This should give large corporate defendants some leeway where document productions take longer. Another new provision requires the responding party’s objection to “state whether any responsive materials are being withheld on the basis of that objection.” One thing the new rule seems to overlook on that point, however, is that often a responding party will not know whether there are additional responsive materials because the objection is to the burden of searching beyond a particular scope. I would expect responding parties will state in their objections what they are not searching for, and thus do not know what exists. Hopefully judges will view that as adequate compliance with the new rule.
  • Sanctions for Failure to Preserve ESI: The new Rule 37 narrows the scope of sanctions for failure to take reasonable steps to preserve ESI. An adverse inference instruction or other severe sanction is permitted “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation . . . .” This should reduce the stress level when oversights or mistakes are made in the preservation of ESI.

On a related note, if you are interested in a program on strategies for the use of absent class member discovery in defending class actions, my fellow class action blogger Andrew Trask and I are doing a webinar for Stafford on that subject on December 2. I have a small number of free registrations available for clients and friends – if you are interested just e-mail me.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.