On December 1, 2015, significant changes to the Federal Rules of Civil Procedure will take effect. The amendments include revisions to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55, as well as the abrogation of Rule 84 (a collection of practice forms) in its entirety. They represent the culmination of five years of efforts to overhaul current discovery, procedural, and trial practices.
The amendments widely inject into the rules principles of cooperation among parties, efficiency, reasonableness in expenses, and early consideration of e-discovery issues. For example, Rule 1 is amended to provide that parties share a responsibility with the courts to secure the just, speedy and inexpensive determination of every action. The Judicial Conference Committee on Rules of Practice and Procedure, which drafted and approved the amendments, explains that “[e]ffective advocacy is consistent with – and indeed depends upon – cooperative and proportional use of procedure.” The amendments extend this philosophy to all phases of litigation. The critical amendments are summarized below.
Most Significant Changes
The most significant change to the Federal Rules of Civil Procedure is an expressly narrowed scope of permissible discovery under Rule 26(b)(1). Prior to the amendments, discovery was broadly permitted into any nonprivileged matter relevant to any party’s claim or defense or into any matter “reasonably calculated” to lead to discoverable information. The amendment to Rule 26(b)(1) limits the scope of permissible discovery by adding that the discovery must be “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 amendment also removes the “reasonably calculated” language from the rule because, as the Committee notes, “[t]he phrase has been used by some, incorrectly, to define the scope of discovery” and “has continued to create problems[.]” Such revisions emphasize the need for proportionality and a desire by courts to avoid “overdiscovery” or abusive discovery tactics.
Rule 37, which governs sanctions for a party’s deletion of relevant data, also is significantly amended. The previous Rule 37(e) generally opened the door for sanctions for a party’s failure to preserve electronically stored information (ESI), but provided a safe harbor for parties who delete ESI due to the “routine, good-faith operation of an electronic information system.” The simple and limited rule has led to significantly different standards among federal circuits and states regarding how, when, and against whom sanctions should be imposed for spoliation and whether parties were permitted to cure their deletions. Consequently, parties often expend excessive time and money on data preservation efforts in order to avoid the risk of severe sanctions. The revised Rule 37(e) provides express guidance and standards that must be satisfied before a court may impose sanctions for spoliation. Rooted in a party’s common-law obligation to preserve data in anticipation of litigation, the revision “authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures.” Specifically, Rule 37(e) now provides:
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 may:
(1) upon finding prejudice to another party from loss of the information, 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:
(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.
Other Amended Rules
Other rules are amended to demand cooperation and proportionality among parties and to encourage speedy, efficient resolution of actions. For example, Rule 4 requires a plaintiff to serve a defendant with a copy of the complaint within 90, not 120, days after the complaint is filed. Similarly, Rule 16, which governs pretrial conferences, scheduling, and management of actions, is amended to accelerate the beginning of litigation. It now requires courts to enter scheduling orders within 90, not 120, days after service of a complaint on a defendant. Rule 16 also encourages courts to require parties to cooperate and participate in a judicial conference before a party may file a motion related to discovery. Such conferences often are an efficient way to resolve discovery disputes without the time and expense of formal motions practice.
Rule 26 is amended to permit protective orders related to the allocation of expenses related to discovery. Rules 30, 31 and 33, which govern depositions and requests for answers to interrogatories, expressly incorporate proportionality considerations by reference to the revised, narrowed scope of discovery of Rule 26(b)(1).
Certain rule amendments emphasize that parties should focus their attention on e-discovery issues as early as possible in the litigation process. For example, Rule 16 is amended to encourage up-front consideration of e-discovery issues. It permits the court’s initial scheduling order to direct parties to consider specific ESI preservation issues. Similarly, the discovery plan required by parties under Rule 26(f) shortly after the commencement of an action now must include consideration of preservation of ESI. The discovery plan also may implement protective orders under Federal Rule of Evidence 502, a tool which allows parties to provide for the return of inadvertently produced privileged documents without fear that the disclosure waived related attorney-client privilege or work product protections.
Additionally, Rule 26(d)(2) is added to allow a party to deliver Rule 34 Requests for Production of Documents in advance of the Rule 26(f) discovery planning conference between the parties (also known as a “meet and confer” conference). The Committee believes that early delivery of requests for production may facilitate a focused discussion during the Rule 26(f) conference regarding documents needed by parties to support their claims or defenses and may result in streamlined changes to document requests.
The amended Federal Rules of Civil Procedure and its undertones of cooperation and proportionality should assist parties in streamlining their litigation expenses and lead to efficient, effective resolution of cases.