October 23, 2015

Five Things to Know About the Upcoming Amendments to the Rules of Civil Procedure

Arnold & Porter Advisory

The new amendments to the Federal Rules of Civil Procedure take effect on December 1, 2015. They will apply to newly filed actions, as well as pending actions "insofar as just and practicable." Below are five areas where we expect the rules changes to matter most in practice:

1. Cases will move more quickly, at least at the outset. The amendments accelerate deadlines for initial events: 

  • Revised Rule 16(b)(2) reduces the time for an initial scheduling order to issue from 120 days to 90 days after any defendant has been served, or from 90 days to 60 days after any defendant has appeared. This in turn accelerates the timing of the parties' Rule 26(f) discovery planning conference, which must occur at least 21 days before the scheduling order is due. 
  • Revised Rule 4(m) reduces the time a plaintiff has to serve a complaint, from 120 days to 90 days. 
  • Revised Rule 26(d)(2) allows parties to "deliver" discovery requests at any time 21 days after service of a complaint and have the requests considered "served" as of the Rule 26(f) conference. 

2. "Proportionality" will become an operating principle in discovery. As reflected in the Committee Note, the rules have attempted to limit disproportionate discovery since 1983, with debatable success. Revised Rule 26(b)(1) now refers to proportionality expressly in defining the scope of discovery: under revised Rule 26(b)(1), parties may discover any non-privileged, relevant matter that is "proportional to the needs of the case," taking into account enumerated factors. Revised Rule 26(b)(1) removes prior language authorizing courts to order discovery into "any matter relevant to the subject matter involved in the action," and eliminates the oft-cited phrase "reasonably calculated to lead to the discovery of admissible evidence."

3. Responses to document requests will need to specify a time for production and state what is being withheld based on objections. Under revised Rule 34(b)(2)(B), when a party states that it will produce documents or electronically stored information, the production must occur "no later than the time for inspection specified in the request or another reasonable time specified in the response." The prior rule contained no comparable language, and the common practice of informally negotiating production schedules may change as a result. Revised Rule 34(b)(2)(C) also now requires parties to state objections "with specificity," and to say whether any responsive materials are being withheld on the basis of that objection. 

4. The risk of runaway sanctions for failure to preserve will be reduced. Revised Rule 37(e) limits what a court can do when electronically stored information is lost because a party failed to take reasonable steps to preserve the information and it cannot be restored or replaced. If a court finds prejudice from loss of the information, the court may order "measures no greater than necessary to cure the prejudice." A court may apply harsher measures only if it finds that the party also acted with intent to deprive the other party of information, in which case the court may (1) presume 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. This is a departure from the varying, at times contradictory, sanctions issued for failure to properly preserve discoverable information based on the court's inherent authority.

5. Now more than ever, parties are expected to work to resolve discovery disputes outside of court. The amended rules emphasize the need for cooperation during discovery:

  • Revised Rule 1 states that the parties (and not just the court) must employ the rules to "secure the just, speedy, and inexpensive determination of every action and proceeding."
  • Revised Rule 16(b)(3)(B) allows courts to require parties to request a court conference before filing motions over discovery. 
  • Revised Rule 26(f)(3) requires the parties' discovery plan to include any issues about preservation and any proposed agreements for procedures to handle inadvertently disclosed privileged materials.

While the effect of these revisions will be assessed over years, they will immediately impact the day-to-day practice of many litigators. In the short term, we anticipate disputes over whether it would be "just and practicable" to apply these new rules to limit the scope of discovery in pending actions.

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