On December 1, 2015, the Federal Rules of Civil Procedure were amended (the amendments are here and a redline showing the changes from the prior version of the Rules is here). Here’s a quick summary of what I believe to be the most important amendments:
Rule 1: Rule 1 has been amended to indicate that the parties, as well as courts, have an obligation to secure the just, speedy, and inexpensive determination of every action and proceeding.
Rule 4: Rule 4 has been amended to indicate that a defendant must generally be served with process within 90 days after the complaint is filed (shortened from 120 days).
Rule 16: The time for the Court to typically issue a scheduling order has been shortened from
the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared
to
the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.
Further, the Rule has been amended to indicate that the scheduling order may provide for the preservation of electronically stored information and that, before moving for an order relating to discovery, the movant must request a conference with the Court.
Rule 26: In probably one of the most significant changes to the Rules, Rule 26 has been amended to provide that, unless otherwise limited by court order, discovery must be not only relevant to a party’s claim or defense, but also “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.” The Court must limit discovery if it determines that the proposed discovery is outside the scope of the foregoing.
The Court now has explicit authority to allocate expenses regarding discovery when entering protective orders.
Additionally, the following sentence has been stricken from the rules: “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” The Advisory Committee Notes indicate that this provision “is rarely invoked” and that “[p]roportional discovery relevant to any party’s claim or defense suffices, given a proper understanding of what is relevant to a claim or defense.” The Notes also indicate that the three examples of discovery “relevant to the subject matter” of the case provided by the 2000 Notes—i.e., “other incidents of the same type, or involving the same product”; “information about organizational arrangements or filing systems”; and “information that could be used to impeach a likely witness”—are not foreclosed by the current amendment.
My prediction is that these changes to Rule 26 will increase discovery disputes (e.g., whether the discovery is “proportional to the needs of the case” as opposed to simply relevant), requiring more Court intervention. Perhaps this will not be the case, however, as courts were always free to consider the “proportionality” factor when ruling on a motion to compel or a motion for a protective order.
Rule 26 also now permits “early Rule 34” document requests, which are designed to assist the parties focus discussion during the Rule 26(f) conference. Specifically, “[m]ore than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: (i) to that party by any other party, and (ii) by that party to any plaintiff or to any other party that has been served.” However, any such discovery request “is considered to have been served at the first Rule 26(f) conference.”
Rule 26’s contemplated discovery plan now requires the parties’ views and proposals on any issues about “preservation” of electronically stored information.
Rule 34: There are two major changes to Rule 34, dealing with document requests. First, the party responding to the document requests must complete its production of documents “no later than the time for inspection specified in the request or another reasonable time specified in the response.” Per the Advisory Committee Notes, when documents must be produced in stages, “the response should specify the beginning and end dates of the production.”
Second, an objection to a document request “must state whether any responsive materials are being withheld on the basis of that objection.” The Advisory Committee Notes indicate that a responding party may include an objection that contains “a statement that the responding party will limit [its] search to documents or electronically stored information created within a given period of time prior to the events in suit, or to specified sources.” If such an objection is made, “the statement of what has been withheld can properly identify as matters ‘withheld’ anything beyond the scope of the search specified in the objection.”
Rule 37: Rule 37 has been rewritten, and now addresses the preservation and loss of electronically stored information:
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.
Rule 84: Rule 84, previously stating that “[t]he forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate”, has been abrogated. There are no longer any forms.
Appendix of Forms: Abrogated.
The amendments govern all proceedings commenced on or after December 1, 2015, and all proceedings pending on that date “insofar as just and practicable.”