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2015 amendments to the Federal Rules of Civil Procedure now in effect

published in McAfee & Taft Litigation Alert | December 4, 2015

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By Michael F. Smith

Amendments to the Federal Rules of Civil Procedure went into effect December 1. The rules committee’s objectives behind the amendments were to (1) reduce delay, (2) encourage judges to get more involved, (3) clarify the scope of discovery, and (4) address sanctions for a party’s failure to preserve electronically stored information (ESI).

Litigation delays

The 2015 amendments reduce delays in litigation in two ways. First, the amendment to Rule 4 reduces the time limit for serving defendants after the complaint is filed from 120 days down to 90 days. Second, the amendment to Rule 16 now requires the court to enter a scheduling order within 90 days, instead of 120 days, after a defendant has been served, or within 60 days, instead of 90 days, after any defendant has entered an appearance. The amended rule allows the court to extend the deadline for entering a scheduling order where the court finds “good cause for delay.” What warrants good cause is not defined in the rule, but the committee note recognizes that good cause might exist in litigation involving complex issues, multiple parties or large organizations as extra time may be necessary to establish meaningful collaboration between counsel and the people who can supply the information needed to fully participate in a scheduling conference.

Judicial involvement

Amendments were also made to the rules in an effort to encourage judges to get more involved. First, Rule 16 was amended to give courts the discretion to direct that before moving for an order relating to discovery, the moving party must request a conference with the court. Many courts that have used this approach in the past found it to be an efficient way to resolve discovery disputes without the delay and burden associated with a formal motion to compel. Additionally, courts have limited the request for conference to two or three pages to minimize the expense of seeking discovery.

Second, Rule 16 now requires the court to confer live with litigants before setting the scheduling order. The Rule previously allowed the court to enter a scheduling order after conferring with the parties “by telephone, mail, or other means.” That quoted language has been deleted. The committee note explains that “a scheduling conference is more effective if the court and parties engage in direct simultaneous communication. The conference may be held in person, by telephone, or by more sophisticated electronic means.”

Scope of discovery

The 2015 amendments also clarify the scope of discovery in federal courts. Pursuant to the new Rule 26, parties may discover information that is relevant to a party’s claim or defense “and proportional to the needs of the case.”

Rule 26 was also amended to identify six criteria to consider when determining proportionality. Proportionality is determined by considering (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties’ relative access to relevant information, (4) the parties’ resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense outweighs its likely benefit. This proportionality rule has been part of the rules since 1983, but the 2015 amendments moved it up to the section defining the scope of discovery. The committee note advises that the proportionality rule was moved up “to make them an explicit component of the scope of discovery, requiring parties and courts alike to consider them when pursuing discovery and resolving discovery disputes.”

In a further attempt to clarify the scope of discovery, the amendments deleted two provisions in Rule 26 that had been used to broaden the scope of discovery. First, the amendments deleted the language that provided that relevant information need not be admissible “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” The committee notes recognize that the “reasonably calculated” language had been used incorrectly by litigants and courts to define the scope of discovery and that that practice was basically swallowing all other limitations on the scope of discovery. The “reasonably calculated” provision has been replaced with the provision that information within the scope of discovery – “relevant and proportional to the needs of the case” – need not be admissible in evidence to be discoverable. Second, the amendments deleted the provision that allowed a court for good cause to “order discovery of any matter relevant to the subject matter in the action.” The committee note explains that these amendments to Rule 26 are “targeting over-discovery” and “giving the court authority to reduce the amount of discovery.”

Rule 26 also now authorizes a party to deliver requests for production any time more than 21 days after the summons and complaint are served, but they are not considered “served” until the date the Rule 26(f) scheduling conference is held. The committee note explains that this amendment “is designed to facilitate focused discussion during the Rule 26(f) conference. Discussion at the conference may produce changes in the requests.” The objective is to allow the parties and the court to have an informed discussion of the scope of discovery at the scheduling conference.

Cost shifting

Another amendment to Rule 26 now expressly authorizes courts to enter a protective order addressing the allocation of the expenses of discovery. The committee note cautions, however, that recognizing the authority to allocate the costs of discovery to the requesting party “does not imply that cost-shifting should become a common practice.” Parties opposing discovery should use the proportionality criteria to bolster requests that the court shift the cost of discovery to the party requesting the discovery.

Electronically stored information

The 2015 amendments also added a new provision addressing the question of sanctions for a party’s failure to preserve ESI. The purpose of the new rule is to put a national standard in place for sanctions, eliminate the negligence standard adopted by some courts, foreclose reliance on the courts’ “inherent authority,” avoid punishing meaningless loss of ESI, and provide a de facto safe harbor for litigants who take “reasonable steps” to preserve ESI. The new rule only applies to ESI that (1) should have been preserved, (2) but was lost because a party failed to take reasonable steps to preserve it, and (3) which cannot be restored or replaced through additional discovery. It provides an extremely elastic standard as it authorizes a court, upon a finding of prejudice caused by lost ESI, to order “measures no greater than necessary to cure the prejudice.” Only upon finding that a party acted with intent to deprive another party of the lost ESI’s use in the litigation may the court use the harsh penalties of presumptions, dismissals and default judgments.

Amendments apply to pending actions

Parties and the courts should apply the amendments to pending litigation. The amendments provide that they “shall take effect on December 1, 2015, and shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.” Case law provides that where amendments to the rules do not affect the substance of the rules, the amended rules are generally applied to pending civil matters. The 2015 amendments added new procedures and clarified the scope of discovery but did not change the substance of the rules. The amendments should, therefore, apply to pending actions.
Amendments were also made to other rules, including Rules 1 and 34. Parties in federal litigation should review the amendments carefully to ensure they are litigating cases in federal courts with a full understanding of the current rules.

This alert has been provided for clients and friends of McAfee & Taft A Professional Corporation. It does not provide legal advice, and is not intended to create a lawyer-client relationship. Readers should not act upon information in this alert without seeking professional counsel.