Last Tuesday, Rebecca Rutherford gave a CLE on the upcoming amendments to the Federal Rules (which, absent congressional action, will take effect in December 2015). Ms. Rutherford is a former law clerk of former Magistrate Judge Kaplan, a current law clerk of Magistrate Judge Stickney, and a future law clerk of Judge Lynn. Given her experience, we thought her take on these amendments was worth sharing:
As an overview, Ms. Rutherford stated that the 2015 amendments (also known as the “Duke Rules Package”) generally encourages cooperation between the parties and active judicial management, with an eye towards lowering the expenses of federal litigation.
This post covers the first third of Ms. Rutherford’s presentation, on the amendments to Rule 26. We’ll cover the other portions of her CLE in future posts.
The key change to Rule 26 was 26(b)(1), covering discovery scope and limits. The rule no longer allows discovery into “any matter relevant to the subject matter involved in the action” or anything “reasonably calculated to lead to the discovery of admissible evidence”—those phrases have been stricken from the rules. Instead, discovery must be relevant and proportional to the needs of the case. The rule lays out proportionality factors (which were originally part of Rule 26(b)(2)(C)(3)) to consider in determining whether the discovery is “proportional to the needs of the case.”
Some thoughts from Ms. Rutherford on the proportionality factors:
- Ms. Rutherford stated that the purpose of the amendment was to limit discovery, especially given the proliferation of electronically stored information. The drafters saw the previous standard (especially the “reasonably calculated” phrasing) as too inclusive.
- Ms. Rutherford believes that courts will place emphasis on the fifth factor—“the importance of the discovery in resolving the issues.” If you’re moving to compel, you really need to be able to articulate the benefit of the discovery you’re seeking.
- For parties resisting motions to compel, Ms. Rutherford suggests quantifying the expense—she believes it’s easier for courts to consider concrete numbers. (That said, Ms. Rutherford suggested that parties should refrain from overestimating the expense of complying with discovery. Courts have a long memory, and you’ll lose credibility if your estimates are off.)
A few other changes to Rule 26:
- Rule 26(c)(1)(B) now allows courts to allocate expenses when ruling on a motion for protective order.
- Rule 26(d)(2) allows parties to serve requests for production early, before the Rule 26(f) conference. Ms. Rutherford explained a benefit from serving early requests for production—parties can better discuss potential document-production issues early, for early consideration by the Court (if needed).
- Rule 34(b)(2) adds important new rules for discovery responses. Objections must be stated with specificity, you must state whether documents have been withheld based on the objections, and you must state the date that you intend to provide your document production.
Some thoughts from Ms. Rutherford on the changes to Rule 26:
- Ms. Rutherford believes that Courts are already considering motions to compel under the principles of the amended rules, and stated that parties should be prepare to litigate existing cases under the new rules on December 1. She suggested reviewing Heller v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014) (which incorporated many of the principles of the amended rules) as an example on how to object and respond to discovery in the Northern District. (We will be dedicating a separate, upcoming post to Heller, as it is a very important decision).
- Ms. Rutherford stated that the committee notes suggested how to deal with a rolling document production—that a litigant should state when it intends to start and finish producing responsive documents. Ms. Rutherford suggested that litigants moving to compel, in response, should not move until after the “finish” date has past, as the documents likely haven’t been produced yet.