United States: The 2015 Amendments To The Federal Rules Of Civil Procedure: What You Need To Know

The 2015 Amendments to the Federal Rules of Civil Procedure have been years in the making and will finally take effect on December 1. The amendments include changes that redefine the scope of relevant discovery and provide for sanctions for failure to provide electronically stored information. The amendments also are intended to speed up the early stages of litigation. Here we provide a summary of what you need to know to stay on top of the changing landscape for federal practice.

WHEN DO THE AMENDMENTS GO INTO EFFECT?

The amendments take effect on December 1, 2015.1

WHAT CASES FALL UNDER THE REVISED RULES?

The amendments apply to all proceedings commenced after December 1, 2015, as well as all proceedings then pending "insofar as just and practicable."

WHICH RULES ARE AMENDED?

The amendments affect Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55 and 84.

WHAT ARE THE CHANGES?

1. SCOPE OF DISCOVERY

Arguably, the changes that have generated the most buzz in the legal community are to the scope of discovery under Rule 26(b). The new Rule 26(b)(1) language is quite different from the former Rule:

OLD RULE 26(B)

(1) Scope in General. 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. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C)

(2) Limitations on Frequency and Extent.
. . .

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
. . .

(iii) the burden or expense of proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

NEW RULE 26(B) (CHANGES IN BOLD)

(1) Scope in General. Parties may obtain discovery regarding any nonprivileged 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 this scope of discovery need not be admissible in evidence to be discoverable.

(2) Limitations on Frequency and Extent.
. . .

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
. . .

(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

SEVERAL KEY CHANGES ARE IMMEDIATELY APPARENT:

  • ADDITION OF PROPORTIONALITY

The Amendment restores proportionality as an express component to Rule 26's scope of discovery. The factors that were previously to be considered on a motion to limit to discovery under Rule 26(b)(2)(C) are now part of the proportionality inquiry under Rule 26(b)(1). Parallel changes are made in Rules 31, 31 and 33 to reflect Rule 26(b)(1)'s recognition of proportionality.

  • DELETION OF "DESCRIPTION, NATURE," ETC.

The new rule deletes the provision for discovery of "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." The Committee Note explains that the deletion is not meant to remove those items from the realm of discovery, but rather "[d]iscovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long test of Rule 26 with these examples."

  • DELETION OF "RELEVANT TO THE SUBJECT MATTER"

The Amendment removes the prior language authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter of the litigation. The Committee Note states that this language was "rarely invoked" and that proportional discovery suffices.

  • DELETION OF "REASONABLY CALCULATED TO LEAD TO DISCOVERY OF ADMISSIBLE EVIDENCE"

Amendment also deletes the statement that evidence need not be admissible "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." The Committee Note states that phrase "has been used by some, incorrectly, to define the scope of discovery" and that it was "never intended to have that purpose." The new rule replaces this language with a statement that "[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable." The Amendment, according to the Committee Note, eliminates this incorrect reading of the rule, but still retains the rule that inadmissibility is not a valid reason to oppose discovery of relevant information. In addition, the Amendments also authorize under Rule 26(c)(1)(B) protective orders to include "allocation of expenses" arising from discovery. After concerns were raised in public comments, however, the Committee Note was amended to state that "[r]ecognizing the authority to shift the costs of discovery does not mean that cost-shifting should become a common practice" and that "[c]ourts and parties should continue to assume that a responding party ordinarily bears the costs of responding."

2. FAILURE TO PRESERVE ELECTRONIC INFORMATION

Another significant change to the Rules is the addition of provisions regarding sanctions for failure to preserve electronically stored information. Whereas the prior Rule 37 had very limited protection for litigants who had lost electronic information, the new Rule 37(e) provides for a more fulsome procedure in the imposition of sanctions for failure to provide electronically stored information.

OLD RULE 37(E)

(e) Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

NEW RULE 37(E) (CHANGES IN BOLD)

(e) Failure to Preserve Electronically Stored Information. If electronically stored information 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 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) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Per the Committee Note, the old more limited Rule "has not adequately addressed the serious problems resulting from the continued exponential growth in the volume of [electronically stored] information." Accordingly, federal courts had established ranging standards for the imposition of sanctions or other measures for failure to preserve ESI, causing litigants "to expend excessive effort and money on preservation in order to avoid the risk of severe sanctions if a court finds they did not do enough." The new Rule is intended to foreclose reliance on the court's inherent authority or state law to determine what measures a court may employ if it finds information that should have been preserved was lost and what findings are necessary to justify those measures. The Committee made clear, however, that the new Rule 37(d) does not affect independent state law claims for spoliation. The Rule also does not create a new duty to preserve – rather, it is based on the existing common-law duty.

The Committee Note provides greater detail about what a finding of "reasonable steps" or "prejudice" entails and what "measures" might be appropriate where information is lost. Finally, it should also be noted that Rule 37(e)(2) rejects the use of an adverse-inference instruction on a finding of negligence or gross negligence in failing to preserve ESI, resolving a circuit split on the issue.2 According to the Committee Note, "[t]he better rule for the negligent or grossly negligent loss of electronically stored information is to reserve a broad range of measures to cure prejudice caused by its loss, but to limit the most severe measures to instances of intentional loss or destruction."

3. RESPONDING TO RFPS

There are three changes with respect to the substance of RFP responses: (1) objections to RFPs must be stated "with specificity," (2) responding parties may state they will produce copies of documents or ESI instead of permitting inspection, and should state a reasonable time for production,3 and (3) an objection must state whether any responsive materials are being withheld on the basis of the objection.

OLD RULE 34

(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.

(C) Objections. An objection to part of a request must specify the part and permit inspection of the rest.

NEW RULE 34 (CHANGES IN BOLD)

(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.

The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response. (C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

According to the Standing Committee Chair Report, these three amendments are intended to eliminate three frequent problems: "broad, boilerplate objections," "responses that state various objections produce some information and do not indicate whether anything else has been withheld," and responses that state responsive documents will be produced but provide no indication of when they will be produced and the documents then are not produced expeditiously.

4. SPEEDING UP AND STREAMLINING LITIGATION

Several changes throughout the Rules have the purpose of expediting the early stages of litigation and generally streamlining litigation:

  • SERVICE OF SUMMONS

The Amendments change Rule 4(m) to reduce the time for serving a defendant from 120 days following the filing of a complaint to 90 days.

  • ISSUANCE OF SCHEDULING ORDER

Rule 16(b)(2) is amended to reduce the time for the judge to issue the scheduling order from 120 days after service to 90 days, or from 90 days after any defendant has appeared to 60 days, unless there is good cause for delay.

  • EARLY RULE 34 REQUESTS

Under the old Rule 26, a party could not serve discovery until after the Rule 26(f) conference. Under new Rule 26(d)(2), RFPs may be served as soon as 22 days after service of the complaint and summons and before the Rule 26(f) conference. However, the response time does not commence until after the Rule 26(f) conference. This change is also reflected in Rule 34(b)(2)(A). The purpose of the change, according to the Committee Note, is to "facilitate focused discussions [on discovery] during the Rule 26(f) Conference."

  • ALTERING SEQUENCE OF DISCOVERY

Whereas the prior Rule 26 allowed for discovery in any sequence unless the court orders otherwise, the new Rule 26(d)(3) allows for the parties to agree to case-specific sequences of discovery.

5. RULE 16 CONFERENCES

The new Rule 16 strikes the provision that a scheduling conference may be held "by telephone, mail, or other means." Rather, the Committee Note explains that "[a] scheduling conference is more effective if the court and parties engage in direct simultaneous communication." The Note goes on to say that a conference "may be held in person, by telephone or by more sophisticated electronic means," seemingly doing away with conferences by mail.

OLD RULE 16(B)(1)

. . . . the district judge – or a magistrate judge when authorized by local rule – must issue a scheduling order: . . .

(A) after receiving the parties' report under Rule 26(f); or

(b) after consulting with the parties' attorneys and any unrepresented parties at a scheduling conference by telephone, mail or other means.

NEW RULE 16(B)(1)

. . . the district judge – or a magistrate judge when authorized by local rule – must issue a scheduling order:

(A) after receiving the parties' report under Rule 26(f);

Or

(b) after consulting with the parties' attorneys and any unrepresented parties at a scheduling conference.

6. CONTENT OF SCHEDULING ORDERS AND DISCOVERY PLANS

Rules 26(f)(3) and 16(b)(3) are amended in parallel to add additional items to scheduling orders and discovery plans:

  • THREE ADDITIONS TO WHAT MAY BE IN A RULE 16 SCHEDULING ORDER:

The Amendments change Rule 4(m) to reduce the time for serving a defendant from 120 days following the filing of a complaint to 90 days.

  • TWO ADDITIONS TO WHAT MUST BE IN A RULE 26(F) DISCOVERY PLAN:

Under the amended Rule 26(f)(3), the discovery plan must now also state the parties' views and proposals on: (1) any issues about preservation of electronically stored information, and (2) whether to ask the court to include their agreement about attorney-client privilege or work-product protection in an order under Federal Rules of Evidence 502.

7. THE RULES ARE THE RESPONSIBILITY OF ALL PARTIES

To emphasize that the parties share in the responsibility to employ the rules, Rule 1 is amended to state that the Rules shall be "construed, and administered and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." (Additions underlined). The Committee Note makes clear, though, that the amendment does not create any new or independent scope of sanctions.

8. SETTING ASIDE A DEFAULT

Rule 55(c) is amended to clarify that the Rule 60(b) standards only apply when seeking relief from a final judgment. A default judgment that disposes of less than all claims among all parties is not a final judgment unless the court directs the entry of a final judgment under Rule 54(b).

9. NO MORE APPENDIX OF FORMS

The Committee found that the purpose of the Appendix was to provide illustrations for the rules, which is no longer necessary. The Appendix of Forms has therefore been abrogated. The form for a Waiver of Service has been directly incorporated into the text of Rule 4.

SO WHAT DOES THIS MEAN FOR MY PENDING CASES?

As noted above, the amendments only apply to pending cases "insofar as just and practicable." But what is just and practicable? Obviously, for any cases in the very early stages of litigation, it is plain that most changes will be applicable going forward. For cases further along, the answer will vary case to case.

Should you go back and revise your discovery responses because of the changes to the scope of discovery? As explained in the Committee Note, the changes were more intended to correct misunderstandings rather than to change the proper scope of discovery. Thus, discovery responses should not need to be revised for scope, but only if the Rules were applied correctly the first time around.

What about responses to Requests for Production? If you are served with a set of RFPs between now and December 1, the best practice would be to prepare your responses to comply with the new Rules and avoid the time, cost and expense of preparing the responses under the old Rules and then revise them to comply with the new Rules. Also, depending on the animosity level between the parties, and to avoid timely and costly discovery disputes, a review of prior discovery responses may be necessary to bring them into compliance with the new rules. For instance, if the responses stated objections but did not state those objections "with specificity" or whether any information was withheld on the basis of those objections, the best practice would probably be to revise those responses.

Should you change your document preservation policies? The amendment regarding failure to preserve ESI should not affect what you preserve in your pending cases, as the new Rule 37 does not seek to define when the duty to preserve arises but rather what should happen once ESI that should have been preserved is lost. In fact, many judges have already implemented local rules to address ESI issues as the new Rules have done. Nevertheless, the Committee Note provides an important refresher about what "reasonable steps" to preserve ESI include.

What will the return of the "proportionality" requirement do to your cases? Though the Advisory Committee has said that restoring proportionality to Rule 26 does not change the responsibilities of the court and the parties, it is likely that this amendment will renew focus on the issue to the benefit of defendants. For example, many cases involve a single plaintiff against a large corporate defendant. The cost for a plaintiff to produce ESI is far less than it costs a corporate defendant to produce ESI, especially when most plaintiffs ask for voluminous documents over a large period of time. So, if a plaintiff's damages would be $300,000, but it would cost the defendant $150,000-$200,000 to produce the ESI, is that proportional? In most cases, the answer may be clear, but there will be instances where it is not. When the cost of discovery vs. damages scenario is as the example above, is it then appropriate to ask the plaintiff to share in the cost? And is that consistent with the Committee Note that the changes to the rules are not intended to shift the cost of discovery? It is likely that the courts will see more of these types of arguments now that proportionality has been expressly returned to Rule 26.

Footnotes

1 See Order of Supreme Court adopting the rules (April 29, 2015). The entire package of materials transmitted to Congress – including the proposed rules, orders adopting the rules, Advisory Committee Note and Standing Committee Chair Report – is available at http://www.uscourts.gov/file/document/congress-materials.

2 Compare, e.g., Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 113 (2d Cir. 2002) ("[D]iscovery sanctions...may be imposed upon a pa rty that has breached a discovery obligation not only through bad faith or g ross negligence, but also through ordinary negligence.") with Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997) ("The adverse inference must be predicated on the bad faith of the party destroying the records. Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case.").

3 Accordingly, Rule 37(a)(3)(B)(iv) is also amended to add authority to move for an order to compel production if "a party fails to produce documents."

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.

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.

Authors
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
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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.

Disclaimer

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.

General

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