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New Amendments to the Federal Rules of Civil Procedure

Baring any objections from Congress, new amendments to the Federal Rules of Civil Procedure will become effective on December 15, 2015. These amendments would affect Rules 1, 4, 16, 30, 31, 33, 34, 37, 55 and 84, as well as the Appendix of Forms. The most significant changes will impact the discovery process and expedite the litigation process. Below is a brief overview of some of the major changes to the rules.

Scheduling Conferences

There are two changes to Rule 16 that aim to shorten the amount of time it takes to begin litigation. Specifically, the amendments state that the Court must issue a scheduling order within 90 days (as opposed to the previous requirement of 120 days) after the defendant has been served, or 60 days (not 90 days) after the defendant appears.

The amendments also state that the parties must actually appear at scheduling conferences. Under the current Rule 16(b)(1)(B), the scheduling conference could be conducted by “telephone, mail, or other means.” However, the amendments remove that language and it simply states “after consulting … at a scheduling conference.” The committee notes state that scheduling conferences are more effective when the judge and parties interact simultaneously.

Scope of Discovery

Over the years, changes to the rules regarding the scope of discovery have been made in attempt to reduce the amount of overbearing and unnecessary discovery requests. The new amendments change Rule 26 once again to support that goal.

The amendment to Rule 26(b)(1) makes one of the more significant changes to the Rules. The amendment maintains that parties can seek any non-privileged discovery that is relevant to their case and that the information sought through discovery does not need to be admissible in court. However, the discovery must now be “proportional to the needs of the case,” as opposed to simply stating that it must be relevant. The amendment to the Rule also lists a number of factors to consider when determining whether the discovery is proportional, such as the importance of the discovery in resolving the matter, the importance of the issues at stake, the amount in controversy, and the burden and expense of the request to others.

Timing of Requests for Production

Under the current rules, discovery may not be served on the other party until after the scheduling conference pursuant to Rule 26(f). However, the amendments added Rule 26(d)(2) to allow for requests for production prior the scheduling conference. However, this amendment does not affect other forms of discovery. The amended rule allows a party to deliver Rule 34 requests for production 22 days after service of the pleadings on the opposing party. However, the requests are deemed to be served on the date of the Rule 26(f) conference. Therefore, the opposing party’s time for response begins the day of the conference, not the date they received the requests for production. The committee notes indicate that the amendment was made to allow the parties to have more information regarding the scope of the matter prior to the Rule 26(f) conference, which supports more focused scheduling conferences between the parties and judge.

Responding to Discovery Requests

In addition to allowing delivery of Rule 34 requests for production prior to the Rule 26(f) conference, the amendments also make changes to Rule 34 itself. The main focus of the amendments to these rules is to ensure that the parties are not simply providing boilerplate responses, as well as to create time frames for producing discovery.

To accomplish these goals, Rule 34(b)(2)(B) now states that objections to requests must “specifically” state the reason for the objection. Also, under the amended 34(b)(2)(C), the objection would also have to state whether any discovery is being withheld on the basis of the objection. The committee notes indicate that the objecting party need not provide an in depth log of the withheld discovery, but at the very least must provide an indication of what is withheld. For example, an objection could state that all information prior to a certain date is withheld.

The amendments also suggest that if a party states they will produce the requested information as opposed to allowing inspection, they must either produce the discovery within the time frame stated in the request or propose in the response an alternative reasonable time frame for when the information will be produced. According to the committee notes, if the responding party intends to produce discovery in stages, they must notify the opposing party of this in their response and still provide a reasonable timetable.

Sanctions for Failure to Preserve Electronically Stored Information (“ESI”)

Finally, the amendments completely rewrote Rule 37(e), since sanctions for the loss of ESI had been applied differently in the various circuit courts. Under the currently proposed Rules, the court would not impose sanctions for ESI lost as part of a “routine, good faith operation of an electronic operation system.” However, under the amendment, the court may impose sanctions if ESI “that should have been preserved in 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.

If the court finds that the spoliation prejudiced the opposing party, but was not done intentionally, the court can issue sanctions “no greater than necessary to cure the prejudice.” However, if the court finds that the party intentionally destroyed ESI so the opposing party could not use it, then the court may presume the information was favorable to the opposing party, instruct the jury that it was unfavorable, dismiss the action, or enter default judgment.

This is just an overview of the most important changes to the Federal Rules of Civil Procedure. There are amendments to many other rules in addition to the ones touched on above. For more in depth information on the new amendments, read the Amendments Adopted by the Supreme Court – Pending Congressional Review.