By: Tracy M. Evans, Esq., Associate, Saxon Gilmore & Carraway, P.A.
Several amendments to the Federal Rules of Civil Procedure (the “Rules”) take effect on December 1, 2015. Legal professionals and parties should be aware of how these changes will affect current and future litigation. According to the United States Supreme Court’s April 29, 2015, order approving the proposed amendments, the amended Rules will apply to all actions filed on and after December 1, 2015, and will also apply to currently pending matters “insofar as just and practicable.” Currently, there is no guidance as to how the “just and practicable” standard should be applied, and the applicability of the amended Rules to pending cases will likely be met with some resistance, especially with respect to changes in the scope of discovery. The following is a summary of the major amendments to the Rules.
Reducing Delay and Accelerated Deadlines
The amendments to Rules 1, 4(m), 16(b), and 26(f) are designed to reduce delay at the outset of a case, and improve cooperation in the early stages of a case. Rule 1 was amended to specify that both the court and the parties are to employ the Rules “to secure the just, speedy, and inexpensive determination for every action and proceeding.” This amendment was designed to emphasize that both the court and the parties share in the responsibility to employ the Rules in the same way.
The amendments significantly reduce deadlines that occur at the outset of a case. First, Rule 4(m) reduces the time to serve a defendant with the complaint from 120 days to 90 days. Also, Rule 16(b)(2) reduces the time for the issuance of the initial scheduling order from 120 days down to 90 days after any defendant has been served, or from 90 days down to 60 days after any defendant has appeared.
Resolution of Discovery Issues Outside of Court
Several of the amendments are aimed at encouraging and facilitating the resolution of discovery disputes outside of court. Rule 16(b)(3) was amended to permit the scheduling order to require the parties to attend a conference with the court before moving for a discovery order. This amendment is based upon the idea that conducting brief conferences regarding discovery helps the parties identify and resolve potential issues or disputes quicker and more efficiently. Rule 16(b)(3) also now permits scheduling orders to provide for the preservation of electronically stored information (“ESI”) and for any agreements the parties have reached regarding disclosures of communications or information covered by attorney-client privilege and work product. Consistent with this amendment, Rule 26(f)(3) now requires the parties to include any issues they may have regarding ESI preservation and any agreements regarding inadvertent disclosure of privileged materials in their discovery plans.
Proportionality Standard in Discovery
The amendments provide a new standard for defining the scope of discovery. Rule 26(b)(1) was revised to permit discovery of any non-privileged, relevant matters “proportional to the needs to the case,” and enumerates a list of factors used to determine proportionality. This amendment removed language providing that a court may order discovery of “any matter relevant to the subject matter involved in the action,” and also deleted the phrase “reasonably calculated to lead to the discovery of admissible evidence,” which was often used to argue in support of extremely broad discovery requests. Rules 30, 31, 33 governing discovery through depositions and interrogatories, were amended to refer to Rule 26(b)(1) and incorporate its emphasis on proportionality.
Requests for Production and Responses
Rule 26(d)(2) was amended to allow parties to serve requests for production of documents prior to a Rule 26(f) conference, but no earlier than 21 days after service of a complaint. Any requests for production served earlier will be deemed served as of the date of the Rule 26(f) conference.
Rule 34(b)(2) was amended to require parties to be more specific in responding to requests for production of documents. The amendment requires parties to state any objections with specificity and indicate whether any materials are being withheld based on the objection. In addition, if parties indicate in their response that they intend to produce or permit inspection of documents, parties must indicate which method of production they will utilize. Further, production or inspection must occur no later than the time specified in the request or another reasonable time specified in the response.
Sanctions for Failing to Preserve ESI
Rule 37(e) was amended to address what a court can do when a party fails to preserve ESI. Under the amended Rule, if the court finds prejudice from the loss of the information, the Rule limits sanctions to “measures no greater than necessary to cure the prejudice.” Further, if the failure to preserve ESI was intentional, the court may presume the lost information was unfavorable, instruct the jury that the information was unfavorable, dismiss the action, or enter a default judgment. These amendments are intended to provide less variable and more consistent sanctions when a party fails to properly preserve discoverable ESI.
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