Changes to the Federal Rules of Civil Procedure

Beginning December 1, 2015 several new changes to the Federal Rules of Civil Procedure take effect. This article will address the major changes, but there are also minor changes in the rules based upon these changes, most of which change references to other rules and/or sections of rules as needed based upon the major changes outlined below.

Rule 4 regarding Summons now has a revised form for requesting wavier of service. (Rule 4 Notice of Lawsuit and Request to Waive Service of Summons). The time limit for service after the filing of a complaint has been reduced from 120 days to 90 days, after which time the case may be dismissed. (Rule 4 (m)).

Rule 16 regarding Pretrial Conferences; Scheduling; Management has also reduced the time for a Judge to issue a scheduling order. (Rule 16 (b)(2)). Previously the judge must issue the scheduling order the earlier of either 120 days after any defendant had been served with the complaint or 90 days after a defendant has appeared.  The changes shorten the time to 90 days after service and 60 days after an appearance.

Rule 16 also has added language to include preservation of electronically stored information as something that may be included in the scheduling order. (Rule 16 (b)(3)(B)(iii)).  A scheduling order may also include agreements of the parties reached under Federal Rule of Evidence 502 which related to attorney-client privilege and work product.  (Rule 16 (b)(3)(B)(iv)).  In addition a scheduling order may also require the parties to request a conference with the court prior to moving for an order relating to discovery. (Rule 16 (b)(3)(B)(v)).

One of the biggest changes is contained in Rule 26 which covers the duty to disclose and general provisions governing discovery.  In the new version of the rule, the general scope of discovery now provides that:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and 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.” (Rule 26 (b)(1)).

This change has removed the prior language that “Relevant information need not be admissible at trial if the discovery appears reasonably calculated to the discovery of admissible evidence.” The addition of the language that discovery be “proportional to the needs of the case” has been the subject of much debate in the legal community and as the changes have not yet gone into effect it is unclear what the impact will be on the discovery process in Federal Court cases.

The advisory committee in its notes has indicated that the new revision is not “intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional.” The committee also noted that “the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.” This does seem to indicate that a party seeking to compel discovery would be well served to make some showing of proportionality in addition to the current requirement of relevance.

The rule has also added a section on early requests for the production of documents and electronically stored information among others. (Rule 26 (d)(2). This allows a Rule 34 request once 21 days have elapsed from service of a summons and compliant, although the rule provides that the requests are considered served at the first Rule 26(f) conference regarding planning for discovery.

To go along with that change, Rule 34 (b)(2)(A) now provides that if the request for production was delivered pursuant to Rule 26(d)(2) responses and/or objection to the request are due 30 days after the first Rule 26(f) planning conference.

Rule 34(b)(2)(B) & (C) relating to responses and objections to requests for production have also changed.

The new 34(b)(2)(B) provides that: “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.”

The new 34(b)(2)(C) provides that: “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.”

Another major change to the rules is the expansion of Rule 37(e) related to the failure to preserve electronically stored information which 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:

(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.”

This change to Rule 37(e) tracks case law related to the spoliation of evidence which has been in use for some time, this change now codifies the rule with respect to electronically stored evidence.

As these rules are just now going into effect it is unclear exactly what the impact on the discovery process in Federal Courts is going to be. With the prevalence and only increasing amount of information being used and maintained electronically, the changes both seek to limit unnecessary or excessive discovery with the proportionality requirement while also emphasizing the need for parties to take reasonable steps to preserve that growing amount of electronic information in today’s world.

Lara Percifield