United States: Congratulations! Now What?

Last Updated: December 4 2015
Article by Karin S. Jenson

Twitter is abuzz with messages about today's effective date for the changes to the Federal Rules of Civil Procedure that read more like birth announcements ("It's finally here!"). But figuring out what to do once you get that baby home is another matter – despite having a long time to prepare. Moreover, while there is as much commentary about the rules changes as there are parenting books, it's hard to really figure out what to do until you are doing it.

Having stared down our first Request for Production of Documents due after today, we offer the following tips for adjusting to the new rules, with the caveat that they may not apply in every case. If you have your own tips, post them in the comments or email us.

Timing

  • The changes affect pending cases "so long as just and practicable." The judges involved in the changes have voiced an expectation that they be applied in pending cases.
  • Your best bet for complying with the amended rules is early case assessment. As soon as possible, figure out:
    • Who the key custodians are, and what their roles are.
    • Where the main documents reside.
    • What the challenging places are where discoverable information might reside, such as structured databases, applications, and proprietary platforms.
    • Whether there are sources of potentially relevant electronically stored information that are likely to be lost (e.g., automatic deletion of email) if steps are not taken to preserve them.
    • What factual issues are undisputed and not necessary for discovery.
    • What you need from the adversary in order to resolve the issues in dispute.
  • The deadline for service of a complaint has been shortened by 30 days, to 90 days after filing.
  • The deadline for using a scheduling order has been shortened by 30 days.

Preservation

  • The standard for preservation is "reasonable steps." Document your preservation efforts so that (1) you are competent to discuss them as required at the Rule 26(f) conference, and (2) you can establish reasonable steps if necessary later.
  • You are now required to discuss preservation at the Rule 26(f) conference. Disputes about preservation may be brought to the court's attention and addressed in the scheduling order.

Documents Requests and Responses

  • It is permissible, but not required, to serve Rule 34 Requests for Production of Documents before the Rule 26(f) conference, but the countdown to the deadline for responses does not begin until the Rule 26(f) conference. The advantage is that you have the opportunity to discuss specific objections to those requests at the conference. The advantage of receiving them from your adversary is that you have an understanding of what they believe is relevant for purposes of identification and preservation of documents and information. Disputes can be brought to the judge at the Rule 16 conference.
  • It is now required that the responding party either produce documents on the date specified in the requests or provide a specific date for when documents will be produced. If you intend to make a rolling production, you must state the dates the production will begin and end.
  • Boilerplate objections are no longer permissible. If you make an objection, you must state specifically what you are withholding on the basis of that objection. You may satisfy this requirement by describing the search you will do (e.g., Defendant will use key word searches for the department's fileshare and the active mail file of the following five custodians.).
  • The across-the-board use of "any and all documents" relating to a particular topic may not be appropriate or necessary for certain requests. Consider whether it is appropriate to break requests into pieces. For example, if there are documents that don't require the responding party to use search terms to find them (a personnel file, articles of incorporation, etc.), make that request without using "any and all." Consider instead using "sufficient to show."

Relevance

  • "Reasonably calculated to lead to the discovery of admissible evidence" is no longer in the amended rules and is no longer the test for relevance.

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.

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