Effective December 1, 2015, amendments to Federal Rules of Civil Procedure 1, 4, 16, 26, 34, 37 and 84 seek to streamline litigation to make discovery proportional to the case and improve case management. Because the amendments will apply to pending cases as well as to cases commenced after December 1, federal practitioners need to learn all their implications now.
Here are the seven most important takeaways from the 2015 amendments:
1) “Proportional” Discovery
Under pre-existing Rule 26(b) (1), the scope of discovery includes “any nonprivileged information relevant to any party’s claims or defenses,” for good cause shown and pursuant to court order, discovery may expand to include information relevant to “the subject matter involved in the action.” Discoverability will turn on a case-by-case assessment of the information’s importance in that case.
Eliminating the “subject matter” prerequisite, the Amendments 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: “(1) the issues at stake in the action, (2) the amount in controversy, (3) the parties’ relative access to relevant information, (4) the parties’ resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden of the proposed discovery outweighs its likely benefit.”
To streamline discovery, ideally, the parties and court should consider sequencing discovery to focus on those issues with the greatest likelihood to resolve the case.
2) “Reasonably Calculated” Is No More
The Amendments have eliminated the phrase “reasonably calculated” and Rule 26(b)(1) now provides 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.”
3) Active Case Management Encouraged
Rule 1 has been amended to provide that the Rules should be “construed” and “administered” to “secure the just, speedy and inexpensive determination of every action and proceeding.” The amendments seek to promote a culture shift toward more active case management by judges, with counsel’s cooperation.
Amended Rule 16 encourages live case management conferences and encourages courts to direct the parties to request a conference with the court before filing any discovery motion. With more engagement, an early focus on the scope and sequence of discovery may lead to proceedings that are more efficient.
4) Earlier Document Requests
Under the amended Rules, even though responses are not due until 30 days after the initial 26(f) conference, any party may deliver document requests as early as 21 days after service of the complaint.
The allowance of earlier service is designed to focus the parties’ (and the court’s) consideration of what discovery is proportional and to tee up issues sooner. This will also give the receiving party of the service earlier notice of the scope of materials sought, which will make length extension requests less tenable.
5) More Substantive Document Request Responses
Rule 34 added new requirements that aim to eliminate boilerplate language that fails to serve any purpose in resolving document issues. Objections are required to be stated “with specificity.”
Further, production must be completed “no later than the time for inspection specified in the request or another reasonable time specified in the response.” Essentially, parties may need to supplement their responses as they learn what materials they are withholding, and why.
6) More Forgiving E-Discovery Sanctions
Rule 37 sets a new national standard (where the Circuits had differed) that will make evidentiary sanctions rare such that they are imposed only where: (1) information that should have been preserved is lost because a party failed to take reasonable steps to preserve it, (2) it cannot be restored or replaced through additional discovery, and (3) 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.”
7) Tighter Case Schedules
The default time for the court’s issuance of the Rule 16 scheduling order has been shortened from 120 days to 90 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 Rule 16 scheduling order, the discovery conference also moves up by 30 days. The default time limit for serving a complaint under Rule 4 is also reduced from 120 days to 90, absent good cause shown.