Recent Amendments To Federal Rules Change Pretrial Procedures
Practitioners and litigants should take note of several significant changes to the Federal Rules of Civil Procedure (“FRCP”) that took effect as of December 1, 2015. Most significantly, the amendments address early case management and the scope of discovery, in accordance with the FRCP’s aim “to secure the just, speedy, and inexpensive determination of every action and proceeding.”
The changes to the FRCP apply not only to newly filed cases but also to pending cases, insofar as applying the revised rules to a pending case is “just and practicable.” Thus, it is imperative that litigators and their clients become familiar with the new requirements and procedures.
The most significant amendments to the FRCP are highlighted below.
Rule 4 (Summonses)
Some of the amendments to the FRCP shorten timeframes and streamline case management tasks during the early stages of litigation. Under the revised Rule 4(m), for example, the deadline for serving a summons and complaint once the complaint has been filed in court has been reduced from 120 to 90 days.
Rule 16 (Scheduling Conferences)
Several of the changes to the FRCP relate to Rule 16 scheduling orders, which typically follow a scheduling conference convened by the court soon after a complaint has been filed:
- Previous language in Rule 16(b)(1) providing for a scheduling conference to be held by “telephone, mail, or other means” has been removed, thereby encouraging courts to hold in-person scheduling conferences.
- Under an amendment to Rule 16(b)(2), the timeframe for issuance of a scheduling order has been reduced to the earlier of (i) 90 days after any defendant has been served, or (ii) 60 days after any defendant has appeared. (Previously, those time intervals were 120 and 90 days, respectively.)
- Rule 16(b)(3) now specifies that a scheduling order may require that a party request a conference with the court before moving for a discovery order.
- Finally, the amended Rule 16(b)(3) specifies that a scheduling order may include provisions relating to preservation of electronically stored information (“ESI”), as well as any agreements reached by the parties under Rule 502 of the Federal Rules of Evidence (relating to the attorney-client and work-product privileges).
Rule 26 (Discovery)
One of the most significant changes brought about by the FRCP amendments relates to the overall scope of pretrial discovery. Under the amended Rule 26(b)(1), parties are permitted to seek disclosure of relevant, non-privileged information that is “proportional to the needs of the case.” Previously, a broader standard – whether information sought in discovery is “reasonably calculated to lead to the discovery of admissible evidence” – applied.
The revised Rule 26(b)(1) specifies that the following factors should be considered in determining whether proposed discovery is “proportional to the needs of the case”: (1) the importance of 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 proposed discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. While it remains to be seen how courts will apply these criteria, they appear to provide litigants with substantially greater leeway to object to broad discovery requests.
Other changes to Rule 26 include the following:
- Under the revised Rule 26(c)(1)(B), a court may issue a protective order allocating expenses for certain discovery responses.
- Rule 26(d)(2) now allows parties to serve requests for production of documents at an earlier time than was previously permissible.
- As amended, Rule 26(d)(3) provides that the parties may stipulate to a specific sequence of discovery.
Rule 34 (Document Requests)
Rule 34, which governs requests for production of documents, incorporates several new requirements. Under the revised Rule 34(b)(2), a party responding to a request for production of documents must: (1) describe with specificity any grounds on which the party objects to the request; (2) specify whether any responsive materials are being withheld on the basis of each individual objection; (3) state whether the party will produce copies of the requested documents or permit the other party to inspect and copy them; and (4) complete its production of requested documents by “no later than the time for inspection specified in the request or another reasonable time specified in the response.”
Rule 37 (Discovery Sanctions)
Finally, the revised Rule 37(e) prescribes potentially severe sanctions for a party that improperly fails to preserve ESI in anticipation of, or in the course of, litigation. For a negligent failure to preserve ESI, the court, “upon finding prejudice to another party from loss of the information, may order measures not greater than necessary to cure the prejudice.” In the case of intentional destruction, the court, “upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation, may: (1) presume that 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.”
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Please feel free to contact us if you have any questions about the recent amendments to the Federal Rules, or how those amendments may affect current or future litigation involving your organization.
Brian gratefully acknowledges Kristin Van Arsdale, formerly with Schwartz Hannum PC, for her assistance in preparing this article.