Can rule changes streamline litigation to make discovery proportional to the case, improve case management, cut down foot-dragging in response to document requests, eliminate "over-preservation" of records and expedite deadlines? Effective December 1, 2015, amendments to Federal Rules of Civil Procedure 1, 4, 16, 26, 34, 37 and 84 seek to do exactly that.
Because the Amendments will apply to pending cases as well as those commenced after December 1, every litigator and party needs to learn their implications now. Here are the seven most important takeaways from the 2015 Amendments. For the deep dive on these issues, join one of the national "Roadshow" events sponsored by the ABA Section of Litigation and Duke Law Center for Judicial Studies, such as Los Angeles, January 27, or San Francisco, January 28. But sign up soon, as these events have been selling out.
- Hello,
"proportional," narrowed discovery. Under
pre-existing Rule 26(b)(1), the scope of discovery included
"any nonprivileged information relevant to any party's
claims or defenses;" for good cause shown and pursuant to
court order, discovery could expand to include information relevant
to "the subject matter involved in the action." The
Amendments eliminate the "subject matter" proviso. More
important, they define the scope of discovery as "matter
relevant to the parties' claims and defenses and
proportional to the needs of the case," considering six
factors: "[i] the issues at stake in the action, [ii] the
amount in controversy, [iii] the parties' relative access to
relevant information, [iv] the parties' resources, [v] the
importance of the discovery in resolving the issues, and [vi]
whether the burden or expense of the proposed discovery outweighs
its likely benefit."
Upshot: Discoverability will turn on a case-by-case assessment of the information's importance in that case, with a focus on determining what the parties genuinely need and making a cost-benefit assessment of likely value. The parties and court should consider sequencing discovery to focus on those issues with the greatest likelihood to resolve the case and the biggest bang-for-the buck at the outset, with more discovery, later, as the case deserves. - Goodbye, "reasonably
calculated." The familiar phrase "reasonably
calculated to lead to the discovery of admissible evidence" is
banished from the lexicon. That phrase had become a shorthand (in
the Rules Committee's view, an inapt one) to justify expansive
discovery. Rule 26(b)(1) now states what the deleted provision was
always intended to mean: that "[i]nformation within this
scope of discovery need not be admissible in evidence to be
discoverable."
Upshot: A lawyer who, by rote, invokes the "reasonably calculated" formulation in the future is doomed to regret it. - Active case management
encouraged. The Amendments seek to promote a culture shift
toward more active case management by judges, with counsel's
cooperation. Rule 1 is amended to provide that the Rules should be
"construed" and "administered" to "secure
the just, speedy and inexpensive determination of every action and
proceeding." Further, the amendment requires "the court
and the parties" to employ the Rules to that end.
Amended Rule 16 encourages live case management conferences and
eliminates prior authorization of case management conferences by
mail. Amended Rule 16 also encourages courts to direct the parties
to request a conference with the court before filing any discovery
motion.
Upshot: With more engagement, the courts and parties can—and are supposed to—use an early focus on the scope and sequence of discovery to get to needed discovery more efficiently. - Document requests right off
the bat. Under the amended Rules, any party may deliver
document requests as early as 21 days after service of the
complaint—long before the initial Rule 26(f) conference that
triggered such requests before. Although responses will not be due
until 30 days after the initial 26(f) conference, this early
service is designed to focus the parties' (and the court's)
consideration of what discovery is proportional and to tee up
issues sooner.
Upshot: Plaintiffs will often have their document requests ready to serve at the 21 day point; defendants may need to scramble to meet that schedule. And, even though the responding party's time to respond does not officially begin to run until the Rule 26(f) conference, the fact that the party had early notice of the scope of materials sought will likely make requests for lengthy extensions less tenable. - More meaningful document
request responses. New requirements in Rule 34 attempt to
cut through impenetrable boilerplate and other tactics that have
delayed and complicated resolution of document issues. Objections
have to be stated "with specificity." The opaque
statement that a document production will occur "subject to
the foregoing objections" will no longer do; responses must
state "whether any responsive materials are being withheld on
the basis of [any particular] objection." Production must be
completed "no later than the time for inspection specified in
the request or another reasonable time specified in the
response." The Advisory Committee notes that this
specification must include, in the event of a rolling production,
"the beginning and end dates of the production."
Upshot: It may take some time for practices to normalize under these changes. Parties may need to supplement their responses as they learn what materials they are withholding, and why. The consequences of failure to meet a promised production end date are unclear. One thing is clear, however: responding parties will need to accelerate their document collection and review if they are to specify, within 30 days, whether anything is being withheld and what the end date for production will be—especially if early requests were served. - National and more forgiving
standards for e-discovery sanctions. The amendments
overhaul sanctions for failure to preserve electronic evidence.
They establish, in Rule 37, a national standard (where the Circuits
had differed) that make evidentiary sanctions rare. Remedies can be
imposed only where information that should have been preserved is
lost because a party failed to take reasonable steps to preserve
it, it cannot be restored or replaced through additional discovery,
and the court finds prejudice to another party. If all this occurs,
the court may order "measures no greater than necessary to
cure the prejudice." Additional, evidentiary sanctions may be
ordered only "upon finding that the party acted with the
intent to deprive another party of the information's use in the
litigation." In that event (and regardless of prejudice), the
court may either impose a presumption that the lost information was
unfavorable to the party that lost it, or may enter judgment
against that party. The amendments do not apply to lost evidence
that was not electronically stored (e.g., paper). The Committee
Notes explain that the new standard "forecloses reliance on
inherent authority or state law to determine whether certain
measures [sanctions] should be used. The rule does not affect the
validity of an independent tort claim for spoliation if state law
applies in a case and authorizes the claim."
Upshot: Litigation over failure to preserve should become less attractive, since the required finding of "intent to deprive another party of the information's use in litigation" is a much higher bar than the negligence standard that previously permitted sanctions in some Circuits. On the other hand, since "intent to deprive" may be a factual issue, this issue could potentially be presented to the jury under Fed. R. Evid. 104. - Tighter case
schedules. The default time for the court's issuance
of the Rule 16 scheduling order has been shortened from 120 to 90
days after any defendant has been served, or 60 (shortened from 90)
days after any defendant has appeared (in the absence of a finding
of good cause). Since the Rule 26(f) discovery conference is
required to occur 21 days before the date for a scheduled Rule 16
scheduling order, the discovery conference moves up by a
corresponding 30 days. The default time limit for serving a
complaint under Rule 4 is also reduced from 120 days to 90 days,
absent good cause shown.
Upshot: Lawsuits will crank up appreciably faster, especially when the shortened time limits are combined with early document requests. The amendments significantly erode the delay in the initiation of discovery that the prior Rules contemplated.
To offer a more complete discussion of the Amendments—particularly their case management and discovery implications—the ABA Section of Litigation and Duke have teamed up to present a national roadshow in 13 cities entitled: "Hello, 'Proportionality,' Goodbye 'Reasonably Calculated': Reinventing Case Management and Discovery Under the 2015 Rules Amendments." These programs have combined national thought leaders in the development of the federal rules with local judges, magistrates and litigators.
Following on seven fully subscribed programs in 2015, programs are scheduled for Los Angeles (January 27, 2016), San Francisco (January 28), Phoenix (March 3), Denver (March 4), Dallas (March 31) and Miami (April 1). Due to the program's popularity, four more programs are in the process of being scheduled for Detroit, Boston, San Diego and Seattle. More resources on the Amendments, and details about the star quality participants in each city of the Roadshow, are available at www.federalrulesamendments.org.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.