Friday, November 20, 2015

Speedier With a Few More Sticks: The Amendments to the Federal Rules of Civil Procedure

On December 1, 2015 the federal courts will put into effect amendments to Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84.  A succinct comparison of the current rules with the amended rules, as prepared by the U.S. District Court for the District of Maryland, is available here.

The changes offer several overarching themes including reducing delays and costs and focusing on proportionality.  The new rules also tackle the discovery of electronically stored information (ESI).  With one limited exception, the amendments are applicable to all pending cases provided such application is “just and practicable.”  The individual courts likely will be tasked with making determinations whether certain rules can be applied to cases already in progress.  Below are some key takeaway points about the changes or emphasis that the amendments impart.

Rule 1
  • further emphasizes just, speedy, and inexpensive determination of cases.
Rule 4
  • time for service after filing the complaint is shortened from 120 days to 90 days.
  • this rule will not apply to pending cases; only cases filed on or after December 1, 2015.
Rule 16
  • focuses the courts’ early and active case management
  • time for issuing the scheduling order is shortened from 120 days to 90 days from service or from 90 days to 60 days from any defendant’s appearance (whichever is earlier)
  • by deleting the enumeration of  the ways to hold the scheduling conference (“telephone, mail, or other means”), the amended rule actually gives the court more flexibility on holding the scheduling conference (e.g. video conference perhaps)
  • added three new topics that may be included in the scheduling order:
    • preservation of ESI,
    • agreements concerning inadvertent disclosures, and
    • whether to require a court-led discovery conference before launching into a discovery motion
Rule 26
  • discoverable information is tied to relevance, as always, and, now with focus on proportionality.
  • for information to be “proportional to the needs of the case,” consider:
    • importance of the information to the case as a whole
    • the size of the case and/or the amount in dispute
    • the access to and resources available to get the information
  • significantly, the new rule deletes the oft-cited requirement that discoverable information be “reasonably calculated to lead to the discovery of admissible evidence”
  • now it just notes that information “need not be admissible” to be discoverable
  • with respect to protective orders, the court now may specify the allocation of expenses for obtaining certain discovery
  • likely with an eye to ferreting out disputes over the scope of discovery, now available is the early delivery of Rule 34 requests for production.  The requests may be submitted 21 days after the complaint, but the time to respond does not start until after the 26(f) conference.
Rules 30 & 31
  • housekeeping changes to conform to amendments to Rule 26 
Rule 34
  • requires that the grounds for objections must stated with specificity and must state whether materials are actually being withheld based on the objection
  • The changes effectively conform the rule to usual practice by offering up the option to just produce the documents and ESI rather than permitting an inspection.
  • If the party opts for production rather than inspection, the response must state when that production will be completed.
Rule 37
  • significant change to the approach to ESI – the safe harbor is eliminated
  • now there is an obligation to preserve ESI in anticipation of litigation
  • if there is a negligent failure to preserve ESI, information is totally lost, and there is prejudice, the court can order “measures no greater than necessary to cure prejudice”
  • only if there is an intentional failure to preserve ESI, the court may take steps akin to spoliation with instructions, presumptions, or dismissal
  • query whether the measures to correct a negligent failure to preserve ESI could include instructions, presumptions, or dismissal OR if those measures are “only” appropriate for an intentional failure to preserve ESI
  • pay attention to the caselaw on ESI.  For example in the 2nd Circuit, a written directive to preserve ESI is required or else the court will assume any failure to preserve was intentional. See Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, LLC, 2010 U.S. Dist. LEXIS 4546 (S.D.N.Y. Jan. 15, 2010).
Rule 55
  • housekeeping change clarifying that “final” default judgments under rule 60(b) may be set aside for good cause
Rule 84 & the Appendix of Forms
  • the forms previously included with the rules as templates are all deleted. 
The author, Katharine Kohm, is a committee member for The Dispute Resolver. Katharine practices construction law and commercial litigation in Rhode Island and Massachusetts.  She is an associate at Pierce Atwood, LLP in Providence, Rhode Island.  She may be contacted at 401-490-3407 or

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