The Amendments are officially upon us. On December 1st, the changes to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84 of the Federal Rules of Civil Procedure became law. For federal-court litigators, these changes included key amendments that are highlighted in this three-part guide. While some changes are as simple as changing the language of your discovery objections, others incorporate fundamental shifts in approaching pre-trial discovery that affect every stage of the pre-trial process.
In light of these important changes in the procedural rules governing federal litigation, we will be publishing a series of posts addressing these changes categorically.[1] First, we’ll begin with the basics, including a look at the changes to Rule 1, amendments affecting the rules regarding the bringing of a case, and case management procedures. Then, the following post addresses some very important changes to the scope of discovery and how parties object and respond to discovery. Finally, this guide ends with a look at the changes to preservation requirements and the new rule governing sanctions for lost or destroyed ESI.
Let’s begin.
Rule 1—Scope and Purpose:
| Previous Rule | Amended Rule | |
| Rule 1 | These rules … should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding | These rules … should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding |
Rule 1 now emphasizes the obligation of not only the court but also the parties to engage in the cooperative and proportional use of civil procedure. Although it does not directly impose a duty to cooperate on the parties, the committee notes suggest that the change embodies cooperation as an aspirational standard. The amended rule, thus, provides authority for a broader, policy-focused argument when responding to discovery, especially the scope of discovery when undue burden, cost, and expense are at issue.
Rules Affecting the Bringing of a Case and Case Management—Rules 4, 16, 26, 34, and 55:
| Previous Rule | Amended Rule | |
| Rule 4(m) | If a defendant is not served within 120 days after the complaint is filed, the court…must dismiss the action without prejudice against that defendant or order that service be made within a specific time | If a defendant is not served within 90 days after the complaint is filed, the court…must dismiss the action without prejudice against that defendant or order that service be made within a specific time |
| Rule 26(d)(2) | (2) Early Rule 34 Requests. (A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: i. to that party by any other party, and ii. by that party to any plaintiff or to any other party that has been served. (B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference. | |
| Rule 16 | (b) Scheduling (1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge…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 or by telephone, mail, or other means (2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any event within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared (3) Contents of the Order. … A. Required Contents… B. Permitted Contents… ... iii. Provide for disclosure or discovery of electronically stored information iv. include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced; … | (b) Scheduling (1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge…must issue a scheduling order: C. after receiving the parties’ report under Rule 26(f); or D. after consulting with the parties attorneys and any unrepresented parties at a scheduling conference. (2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared (3) Contents of the Order. … A. Required Contents… B. Permitted Contents… ... iii. Provide for disclosure, discovery, or preservation of electronically stored information iv. include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502; v. direct that before moving for an order relating to discovery, the movant must request a conference with the court; … |
Rule 4(m)—Summons: This is straightforward—the plaintiff now has 90 days, rather than 120 days, to serve a defendant after the complaint is filed. Note, however, that the subdivision does not apply to service in a foreign country, service on a foreign state, or to service of a notice under Rule 71.1(d)(A)—i.e., personal service in suits condemning real or personal property.
Rule 26(d)(2)—Timing and Sequence of Discovery: This entirely new provision allows a party to jumpstart discovery by serving “early Rule 34 requests” before the Rule 26(f) conference occurs. These early requests are only allowed to be sent “21 days after that party has been served”, and the clock for responding does not start until after the Rule 26(f) conference. According to the committee notes, the intention is to provide a more meaningful and issue-focused discussion at the Rule 26(f) conference. Note that in conjunction with new Rule 26(d)(2), there are changes to Rule 34(b)(2)(A), such that the time to respond to these early Rule 34 requests will be 30 days after the parties first Rule 26(f) conference.
Rule 16(b)—Scheduling Conference: Rule 16(b)(1) changes the scheduling conference itself by eliminating the possibility of conducting such a conference by “telephone, mail, or other means.” The intention—as reflected by the committee notes—was to encourage more direct discussions amongst the court and the parties. Although “mail” is definitively out, the committee notes still provide that the conference may be held by “telephone” or by “more sophisticated electronic means”, which one presumes to be directed at video conferencing.
Rule 16(b)(2) reflects a change in the timing of the scheduling conference. It incorporates a “good cause for delay” escape hatch, but otherwise requires the judge to issue the scheduling order no later than 90 days after any defendant has been served, or 60 days after any appearance of any defendant.
Also, buried deep in the weeds of Rule 16 itself, subsection (b)(3)(B)(v) now permits the court—although it is not necessary—to require that discovery disputes be addressed in a conference with the court before an “order relating to discovery” can be requested.
Similarly buried, the amended Rule 16 also addresses ESI more broadly, now allowing a scheduling order to provide for “disclosure, discovery, or preservation” of ESI under Rule 16(b)(3)(B)(iii). The committee notes suggest that preservation orders may become more common in conjunction with Rule 37(e)’s duty to preserve discoverable information, including ESI, which is discussed more fully in Part Three of this guide.
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Also, on February 11, 2016, the Federation of Defense & Corporate Counsel is hosting a free webinar to discuss recent federal-court decisions on the amended rules, the retroactive application of the new rules, and feedback from practicing attorneys on their experiences with the amended rules:
- When: February 11, 2016, at 1:00 p.m. EST/ Noon CST/ 11:00 am MST/10:00 a.m. PST – (90 minutes)
- What: Looking Forward and Back: How the Amendments to the Federal Rules of Civil Procedure are Impacting New and Pre-Existing Lawsuits
- How: One person from each firm or office location should register by clicking on this link: https://secure.confertel.net/tsregister.asp?program=FDCC
[1] If the title left some clarity to be desired, as a disclaimer, this a quick-and-dirty guide to some of the amendments to the federal rules of civil procedure. There are more, which are not covered in this post. For a complete listing of each of the amendments that took effect on December 1, 2015, see http://www.supremecourt.gov/orders/courtorders/frcv15_5h25.pdf