Reed Smith Client Alerts

On December 1, 2015, much awaited amendments to the Federal Rules of Civil Procedure go into effect. These amendments, intended to narrow the scope of discovery, reduce costs and facilitate early case management, impact Civil Procedure Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84 (the “Amended Rules”). The Amended Rules will govern all federal civil cases commenced after December 1, 2015, as well as all pending proceedings, insofar as just and practicable.

The following is an overview of the substantive amendments to the Rules:

New Focus On Proportionality and Scope of Discovery in Amended Rule 26 The most important impact of the Amended Rules may be their effect on federal discovery practices, with new focus on “proportionality” and “reasonableness”:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. 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. Information within this scope of discovery need not be admissible in evidence to be discoverable if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Amended Rule 26(b)(1) deletes the language “reasonably calculated to lead to the discovery of admissible evidence,” which has been often used in conjunction with discovery objections. The new language “and proportional to the needs of the case” now frames what is discoverable in civil litigation.

In determining proportionality, the court now considers: (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 of the proposed discovery outweighs its likely benefit.

Amended Rule 26(b)(1) provides, however, that information within this scope of discovery need not be admissible under Evidence Rules to be discoverable. Amended Rule 26(b)(2)(C)(iii) also now reflects the proportionality considerations in Amended Rule 26(b)(1) and limits discovery when it is outside the scope permitted by 26(b)(1).

Amended Rules 30, 31 and 33, which govern oral depositions, depositions by written questions and interrogatories, each have been amended to reflect the new recognition of proportionality.

Streamlining Early Case Management Several of the amendments seek to reduce delay and costs and improve cooperation in early stages of litigation:

  • Scope and Purpose – Amended Rule 1 emphasizes the parties’ obligations to make litigation efficient, and stresses that the procedures “should be construed, administered, and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding.”
  • Service of Summons – Under Amended Rule 4(m), the time to serve a defendant after filing the complaint is reduced from 120 to 90 days. If service is not completed in that time, the court must either dismiss the action without prejudice or order that service be made within a specified time.
  • Scheduling Conferences – Amended Rule 16(b)(1) encourages courts to hold a scheduling conference prior to issuing a scheduling order, “in person, by telephone, or by more sophisticated electronic means.”
  • Scheduling Orders – Amended Rule 16(b)(2) reduces the time for a court to issue a scheduling order to the earlier of: (1) 90 days after any defendant has been served (reduced from 120 days); or (2) 60 days after any defendant has appeared (reduced from 90 days), unless the judge finds good cause for the delay. Amended Rule 16(b)(3) also provides that the scheduling order may provide for the preservation of electronically stored information (“ESI”) and agreements reached under Federal Rule of Evidence 502 (which governs issues of attorney-client privilege and work product, such as inadvertent disclosure of privileged materials). Amended Rule 16(b)(3) further permits that scheduling orders may require parties to request a conference with the court prior to moving for an order relating to a discovery dispute.
    Amended Rule 26(f)(3), in accordance with amendments to Rule 16(b)(3), requires the parties’ discovery plan to state the parties’ views and proposals on issues about preservation of ESI and court orders under Rule of Evidence 502.
  • Early Requests for Production: Amended Rule 26(d)(2) allows a party to serve requests for production of documents (under Rule 34) prior to a Rule 26(f) conference, but no earlier than 21 days after the receiving party was served in the litigation. However, document requests served under this Amended Rule will be considered served at the first Rule 26(f) conference, and the party is required to respond within 30 days thereafter.
  • Objections to Discovery Requests and Time to Produce: Amended Rule 34(b)(2) requires that objections to discovery requests be made with specificity and state whether any responsive materials are being withheld on the basis of that objection. Parties may state whether they will produce copies or permit inspection, but the production of any documents must be completed “no later than the time for inspection specified in the request or another reasonable time specified in the response.”

Important Amendments Affecting Discovery of Electronically Stored Information

  • Failure to Preserve ESI: Amended Rule 37(e) authorizes and specifies measures a court may employ if ESI 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 the ESI cannot be restored or replaced through additional discovery.
    Upon a finding of prejudice to another party from loss of the ESI, a court may order measures no greater than necessary to cure the prejudice. A court, upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation, may, (1) presume that the lost information was unfavorable to the party; (2) instruct the jury that it may or must presume the information was unfavorable to the party; or (3) dismiss the action or enter a default judgment.
  • Cost-Shifting Provisions in Protective Orders: Amended Rule 26(c)(1)(B) authorizes cost-shifting provisions within court-ordered protective orders, specifically concerning the “allocation of expenses” for the disclosure or discovery.
  • Production of Copies of ESI: Amended Rule 37(a)(3)(B)(iv) now reflects the common practice of producing ESI directly to counsel for the requesting party, rather than simply permitting inspection, and permits a party to move for an order compelling production if another party fails to produce documents.

Additional Changes

  • Default Judgment: Amended Rule 55(c) clarifies that a federal court may set aside a final default judgment under Rule 60(b).
  • Abrogation of Rule 84: Rule 84, which provides a number of forms, has been abrogated due to many alternative sources for forms, including District Courts’ websites.

Conclusion These amendments to the discovery and case management rules involve important and meaningful reforms and have the possibility of significantly controlling the ever-increasing cost of discovery. These Amended Rules will hopefully return the focus of litigation to the merits of the case, and away from wasteful, protracted discovery battles.

The ultimate impact of the amendments, however, will be dependent on practitioners’ ability to work cooperatively and fully incorporate these new rules into their federal practice, as well as the courts’ willingness to enforce these rules and the new emphasis on “proportionality” in a way that will meaningfully reduce the burden and cost of litigation.


Client Alert 2015-330