United States: Key Changes To The Federal Rules Governing Discovery

Important amendments went into effect on December 1.

The major changes to the Federal Rules of Civil Procedure that govern discovery in federal cases affect Rules 26, 34, and 37.1

Changes to Rule 26(b)(1)

The concept of proportionality and its factors are specifically included in the scope of discoverable information. The factors relating to proportionality include

  • 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.

The language that defines the scope of discovery has also changed—the former language that discovery should be "reasonably calculated to lead to the discovery of admissible evidence" was removed. The Advisory Committee stated that this language was wrongly interpreted to define the scope of discovery and that such a reading has lead to abusively overbroad discovery.

Further, the new version of the rule includes a cross-reference to 26(b)(2) to underscore the court's obligation to supervise discovery to prevent abuse by appropriately limiting the scope of discovery.

Last, the amendment drops the language "for good cause, the court may order discovery of any matter relevant to the subject matter involved in the action" for being unnecessary and rarely invoked.

Changes to Rule 26(c)

In a protective order, the rule now specifically states that the court can allocate expenses for the disclosure or discovery of information. Judges have always had the authority to shift the cost of discovery, but it is now codified in the rule.

Changes to Rule 26(f)(3)

The discovery plan (26(f) report) must now specifically address any issues about preserving electronically stored information (ESI) and should also include any requests that the court enter an order under Fed. R. Evid. 502(d) if the parties agree on a procedure to assert privilege after production.

Changes to Rule 34

Under revised Rule 34(b)(2), objections to document requests must be made with specificity, and boilerplate general objections are insufficient. If a producing party is withholding documents pursuant to its objections, it must say so. The party need not create a "log" of withheld documents in the manner of a privilege log, but should state, for example, the limits that the party will place on a search for documents responsive to a request that it objects to as overbroad.

Revised Rule 34(b)(2)(B) also includes language that specifically codifies the typical practice of producing copies of documents in lieu of permitting inspection, adding that parties may "state that it will produce copies of documents or of electronically stored information instead of permitting inspection."

Changes to Rule 37

The standard for imposing sanctions for failing to preserve ESI has changed under Rule 37(e). Under the new standard, a court may sanction a party if (1) ESI should have been preserved, (2) the party failed to take reasonable steps to preserve it, and (3) it cannot be restored or replaced through additional discovery.

If the court finds that a party has prejudiced by the failure to preserve evidence, the court may only order sanctions sufficient to cure the prejudice. However, if the court finds that the party that failed to preserve acted with "intent to deprive another party of the information's use in litigation," it may order severe sanctions (i.e., an adverse inference or even a dismissal or default judgment against the spoliating party).

This change addresses the varying standards that courts have established in regard to sanctions, essentially adopting the rule that bad faith on the part of a spoliating party must be established for a court to order severe sanctions (compare to the Southern District of New York case law prior to these amendments that allow severe sanctions for negligent spoliation).

Other Changes

Rule 1: Amended to specifically state that parties also bear responsibility to employ the rules to "secure the just, speedy, and inexpensive determination of every action and proceeding" and not just the court. This change does not create a separate basis for sanctions. The Advisory Committee debated but ultimately did not include an explicit "duty to cooperate" on discovery.

Rule 4(m): Changed the time limit for service of a complaint from 120 days to 90 days.

Rule 16 (b)(3): Reduced the time to issue a Scheduling Order to the earlier of 90 days after any defendant has been served or 60 days after any defendant has appeared, and added three items to the list contents permitted in a Scheduling Order: (1) a provision regarding preservation of ESI, (2) a provision regarding any agreements under Fed. R. Evid 502, and (3) a requirement that before filing a discovery motion, the movant must request a conference with the court.

Rules 30, 31 and 33: Parallel amendments were made to these rules to reflect the proportionality considerations added to Rule 26(b)(1).

Rule 55: Amended to make clear that the court may set aside a final default judgment pursuant to the standards set forth in Rule 60(b) only.

Rule 84 and the Appendix of Forms: This rule, which provided a set of sample forms to use in federal cases, was abrogated as no longer necessary.


Many of these amendments are codifications of existing case law that governs discovery, but some, especially the amended Rule 37(e) and Rule 34(b)(2), represent the adoption of one approach from multiple competing lines of cases. The Advisory Committee notes that accompany the rules are instructive and helpful, especially in the areas where substantial changes have been made. Litigants who engage in discovery in federal court should be aware of these changes and adjust their practices accordingly.


1 Amendments went into effect for Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55. Rule 84 was abrogated. These amendments apply in civil cases filed on or after December 1, 2015 and "insofar as just and practicable" in all cases pending as of December 1, 2015. April 29, 2015 Order of the United States Supreme Court. A brief list of the amendments to Rules 1, 4, 16, 30, 31, 33, 55 and 84 is provided at the end of this article.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions