United States: Changes To The Federal Rules Of Civil Procedure Effective December 1, 2015

New amendments to the Federal Rule of Civil Procedure took effect on Tuesday, December 1, 2015. These amendments:

  • Replaced the former relevant standard for discoverable information with a new proportionality standard;
  • Speed up the litigation process with earlier case deadlines;
  • Add consequences for failing to preserve electronically-stored information;
  • Appendix of Forms, including Form 18 for patent infringement, has been eliminated, opening the door for courts to adopt the U.S. Supreme Court's more restrictive Twombly and Iqbal pleadings standards for patent infringement complaint allegations.

New Proportionality Discovery Standard

The 2015 amendments eliminate the "reasonably calculated to lead to the discovery of admissible evidence" standard which has been replaced by (a) "proportional" discovery standard. Rule 26(b)(1) is amended to read:

Parties may obtain discovery regarding any non-privileged 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. Information within the scope of discovery need not be admissible in evidence to be discoverable.   One concern that was voiced by commentators was that the change may place the burden on the requesting party to show that the requests are proportional, thus potentially increasing the number of motions to compel. The committee that drafted the rules responded by adding a note that "The change does not place on the party seeking discovery the burden of addressing all proportionality considerations." Neither the rules nor the committee defined "proportional."

New Requirements When Responding to Document Requests

Rule 34(b)(2) was amended to require specificity in objecting to document requests, as well as the disclosure of "whether any responsive materials are being withheld on the basis of that objection." The committee notes state that the responding does not need to produce a "detailed description or log" of withheld documents; however a party must state whether documents are being withheld.

Speeding Up the Litigation Process

The Rules committee reduced the time for several early case deadlines.

  • The time limit governing service of process in Rule 4(m) was reduced from 120 days to 90 days;
  • Rule 16(b)(2) reduces the number of days for a judge to issue a Scheduling Order to "90 days after any defendant has been served with a Complaint or 60 days after any defendant has appeared" (Previously 120 and 90 days, respectively)

Rule 16(b)(3)(v) has been added to permit, but not require, a Scheduling Order that directs parties to request a court conference before filing a discovery motion. This amendment permits the court to resolve discovery disputes informally without excessive briefing, resulting in reduced costs and delays.

Rule 26(d)(2) has been added to permit service of Requests for Production prior to the Rule 26(f) conference. Under the 2015 amendments, a party can serve document requests starting 21 days after the Summons and Complaint have been served and they will be treated as if they were served on the first Rule 26(f) conference. Rule 34(b)(2) was amended to provide a 30-day time limit after the 26(f) conference to respond to the requests delivered under Rule 26(d)(2). The committee notes explain that these amendments are intended to facilitate discussion during the Rule 26(f) conference.

ESI Preservation

Under the old version of Rule 37(e), absent exceptional circumstances, the court was not permitted to sanction a party if it failed to "provide electronically stored information lost as a result of the routine good-faith operation of an electronic information system." Rule 37(e) now explicitly provides for certain measures a court may impose if electronically stored information is lost.

  • If the ESI 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. If the court finds that the party acted with intent to deprive another party of the information in the litigation, the court may:
  1. presume 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.

The rule changes apply only if the ESI cannot be restored or replaced through additional discovery. Sanctions and curative measures will be imposed only where there is intent "to deprive another party of the information" or "because a party failed to take reasonable steps to preserve it." The rule is inapplicable if ESI is destroyed by events outside the party's control.

New Pleadings Standard in Patent Cases

Now that Form 18 is no longer the minimum pleading standard, the courts may adopt the U.S. Supreme Court's more restrictive Twombly and Iqbal pleading standards for patent infringement complaint allegations. These two Supreme Court cases, decided in 2007 and 2009, set the following standards:

  • A Complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests;
  • "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."
  • Legal conclusions must be supported by factual allegations;
  • Detailed factual allegations are unnecessary, but there must be more than "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertions" that are devoid of "further factual enhancement."

In Re: Bill of Lading Transmission and Processing System Patent litigation, the Federal Circuit ruled that a direct patent infringement complaint only needed to comply with the level of factual details specified in Form 18, but that the Twombly and Iqbal pleading standards applied to claims for indirect infringement. The Twombly and Iqbal standards will now apply to direct patent infringement complaints, just as they currently apply to indirect infringement claims.

Faced with a 12(b)(6) motion, the courts will now have to assess the sufficiency of the pleadings on a case-by-case basis and consider factors such as the scope of the patent claims, the proportion of the accused products covered by the patent, the complexity of the technology, and the ease with which the patentee can obtain information about the accused product.

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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