Can rule changes streamline litigation to make discovery proportional to the case, improve case management, cut down foot-dragging in response to document requests, eliminate “over-preservation” of records and expedite deadlines? Effective December 1, 2015, amendments to Federal Rules of Civil Procedure 1, 4, 16, 26, 34, 37 and 84 seek to do exactly that.
Because the amendments will apply to pending cases as well as to cases commenced after December 1, every federal practitioner needs to learn their implications now. Here are the seven most important takeaways from the 2015 amendments:
1) Hello, “proportional,” narrowed 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.” The Amendments eliminate the “subject matter” proviso. More important, they 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: “[i] the issues at stake in the action, [ii] the amount in controversy, [iii] the parties’ relative access to relevant information, [iv] the parties’ resources, [v] the importance of the discovery in resolving the issues, and [vi] whether the burden or expense of the proposed discovery outweighs its likely benefit.”
Upshot: Discoverability will turn on a case-by-case assessment of the information’s importance in that case, with a focus on determining what the parties genuinely need and making a cost-benefit assessment of likely value. The parties and court should consider sequencing discovery to focus on those issues with the greatest likelihood to resolve the case and the biggest bang-for-the buck at the outset, with more discovery, later, as the case deserves.
2) Goodbye, “reasonably calculated.” The familiar phrase “reasonably calculated to lead to the discovery of admissible evidence” is banished from the lexicon. That phrase had become shorthand (in the Rules Committee’s view, an inapt one) to justify expansive discovery. 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.”
Upshot: A lawyer who, by rote, invokes the “reasonably calculated” formulation in the future is doomed to regret it.
3) Active case management encouraged. The amendments seek to promote a culture shift toward more active case management by judges, with counsel’s cooperation. Rule 1 is amended to provide that the Rules should be “construed” and “administered” to “secure the just, speedy and inexpensive determination of every action and proceeding.” Further, the amendment requires “the court and the parties” to employ the Rules to that end. Amended Rule 16 encourages live case management conferences and eliminates prior authorization of case management conferences by mail. Amended Rule 16 also encourages courts to direct the parties to request a conference with the court before filing any discovery motion.
Upshot: With more engagement, the courts and parties can—and are supposed to—use an early focus on the scope and sequence of discovery to get to needed discovery more efficiently.
4) Document requests right off the bat. Under the amended Rules, any party may deliver document requests as early as 21 days after service of the complaint—long before the initial Rule 26(f) conference that triggers such requests today. Although responses will not be due until 30 days after the initial 26(f) conference, this early service is designed to focus the parties’ (and the court’s) consideration of what discovery is proportional and to tee up issues sooner.
Upshot: Plaintiffs will often have their document requests ready to serve at the 21- day point; defendants may need to scramble to meet that schedule. And, even though the responding party’s time to respond does not officially begin to run until the Rule 26(f) conference, the fact that the party had early notice of the scope of materials sought will likely make requests for lengthy extensions less tenable.
5) More meaningful document request responses. New requirements in Rule 34 attempt to cut through impenetrable boilerplate and other tactics that have delayed and complicated resolution of document issues. Objections will have to be stated “with specificity.” The opaque statement that a document production will occur “subject to the foregoing objections” will no longer do; responses must state “whether any responsive materials are being withheld on the basis of [any particular] objection.” Production must be completed “no later than the time for inspection specified in the request or another reasonable time specified in the response.” The Advisory Committee notes that this specification must include, in the event of a rolling production, “the beginning and end dates of the production.”
Upshot: It may take some time for practices to normalize under these changes. Parties may need to supplement their responses as they learn what materials they are withholding, and why. The consequences of failure to meet a promised production end date are unclear. One thing is clear, however: responding parties will need to accelerate their document collection and review if they are to specify, within 30 days, whether anything is being withheld and what the end date for production will be—especially if early requests were served.
6) National and more forgiving standards for e-discovery sanctions. The amendments overhaul sanctions for failure to preserve electronic evidence. They establish, in Rule 37, a national standard (where the Circuits had differed) that will make evidentiary sanctions rare. Remedies can be imposed only where information that should have been preserved is lost because a party failed to take reasonable steps to preserve it, it cannot be restored or replaced through additional discovery, and 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.” In that event (and regardless of prejudice), the court may either impose a presumption that the lost information was unfavorable to the party that lost it, or may enter judgment against that party. The amendments do not apply to lost evidence that was not electronically stored (e.g., paper). The Committee notes explain that the new standard “forecloses reliance on inherent authority or state law to determine whether certain measures [sanctions] should be used. The rule does not affect the validity of an independent tort claim for spoliation if state law applies in a case and authorizes the claim.”
Upshot: Litigation over failure to preserve should become less attractive, since the required finding of “intent to deprive another party of the information’s use in litigation” is a much higher bar than the negligence standard that previously permitted sanctions in some Circuits. On the other hand, since “intent to deprive” may be a factual issue, this issue could potentially be presented to the jury under Fed. R. Evid. 104.
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.
Upshot: Lawsuits will crank up appreciably faster, especially when the shortened time limits are combined with early document requests. The amendments significantly erode the delay in the initiation of discovery that the prior Rules contemplated.
In order to give a fuller explanation of the Amendments—particularly their case management and discovery implications— the ABA Section of Litigation and Duke Law School have teamed up to present a national roadshow in 13 cities between now and April 2016, entitled: “Hello, ‘Proportionality,’ Goodbye ‘Reasonably Calculated’: Reinventing Case Management and Discovery Under the 2015 Rules Amendments.”
Following on fully subscribed programs in New York, Philadelphia and Newark, the next four programs are in St. Louis (Dec. 3), Atlanta (Dec. 4), Chicago (Dec. 7), and Washington, D.C. (Dec. 8). More resources on the Amendments, and details about the Roadshow, are available at www.federalrulesamendments.org.
Pulgram is a partner at Fenwick & West LLP in San Francisco and chair-elect of the American Bar Association’s 50,000 member Section of Litigation.