Pretrial Practice & Discovery

Federal Rules Amendments

Introduction

The 2015 amendments to the Federal Rules of Civil Procedure were drafted as an attempt to ensure speedy and inexpensive litigation. The amended rules emphasize agreement, reasonableness and proportionality in discovery, and require more detail on objections to discovery. In addition, the 2015 amendments make changes to the rules regarding the production of electronically stored information (ESI).

In addition, there were additional changes to the Federal Rules of Civil Procedure that became effective on December 1, 2016. The most significant of these changes is to Rule 6. Previously, if a document was served electronically through a court’s ECF system, the responding party received an extra three days to respond. The 2016 amendments remove ECF service from the list of those types of services that the responding party may add three additional days for. For example, if a motion was served by ECF, and the rules provided the responding party 20 days to respond, the responding party actually received 23 days to respond. Under the 2016 amendments to Rule 6, the responding party must respond within 20 days.

This webpage is a resource for litigators on the 2015 amendments and the 2016 amendments and how courts are interpreting them. We have links to resources as well as case summaries.


Summary

The 2015 amendments amended the following Federal Rules of Civil Procedure: Rule 1, Rule 4, Rule 16, Rule 26, Rule 30, Rule 31, Rule 33, Rule 34, Rule 37, Rule 55, and Rule 84 (this rule was abrogated). See the first below link for a comparison of the 2015 amendments to the original rules.

The 2016 amendments amended the following Federal Rules of Civil Procedure: Rule 4, Rule 6, and Rule 82. See the second link below to the federal courts’ website for a listing of the rule changes.

Comparison of Current Federal Civil Rules and the Proposed Amendments Effective December 1, 2015

Current Rules of Practice & Procedure


Resources

ABA Section of Litigation Rules Amendments Roadshow

Webinar: Taking Measure of Proportionality: Examining the Implementation of the 2015 Federal Rules Amendments 10 Months Out

Please enjoy the following audio excerpt from the Q & A session at the end of our committee’s successful webinar titled "Taking Measure of Proportionality: Examining the Implementation of the 2015 Federal Rules Amendments 10 Months Out," moderated by committee cochair Robert Will and featuring panelists Senior District Judge Hon. Ivan Lemelle (E.D.La.), Magistrate Shirley Padmore Mensah (E.D.Mo.), and subcommittee chair Kevin Broughel. 


Case Summaries

Rule Number

Case Name

Case Summary

1

Waters v. Drake, No. 2:14-cv-1704 (S.D. Ohio Aug. 12, 2016)

The court discussed amended Rule 1’s requirement that the 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,” as well as Rule 26(b)’s requirement that judges discourage discovery overuse. Court then sets out, step by step, how discovery was controlled in the particular matter, including early case review and frequent conferences.

Garrison v. Equifax Info. Solutions, No. 15-12880 (E.D. Mich. July 25, 2016)

Court, in deciding whether good cause existed under Rule 4(m) to grant an extension of time to serve a defendant with summons, looked at amended Rule 1 that it and the parties should construe the Rules “to secure the just, speedy, and inexpensive determination of every action and proceeding” to hold that the plaintiff should be given more time to properly serve the defendant.

Koehn v. Tobias, No. 12 C 50321 (N.D. Ill. Aug. 23, 2016)

Court used the requirement in amended Rule 1 that parties, not just the court, must use the Rules to resolve litigation without undue cost or delay to show why sanctions were warranted under Rule 16 against defendants that suggested settlement in a certain range and did not advise the court that they were unwilling to consider settlement in that range, causing the plaintiff and the court to incur costs and waste time at a settlement conference. The defendant was ordered to pay the attorneys’ fees and costs of the plaintiffs’ attorneys in preparing for and attending the settlement conference.

Scranton Prods., Inc. v. Bobrick Washroom Equip., Inc., No. 3:14-CV-00853 (M.D. Pa. June 3, 2016)

Court, faced with six discovery disputes between the parties, cited amended Rule 1 in stating that the court and the parties must strive to resolve matters for a just, speedy and inexpensive action, that the parties are not living up to “the letter and spirit of the Federal Rules” and finding that “[s]hould the parties continue with their incessant and petty bickering, and be wholly unable to resolve any dispute (no matter how minor) without the court’s intervention, the court will not hesitate to take just and appropriate action, including sanctions.”

Blake v. Bastmasian, No. 15-cv-81222-MARRA/MATTHEWMAN (S.D. Fla Sept. 2, 2016)

Court found that amendments to Rule 1 makes clear that judges and lawyers must "cooperate and control the expense of litigation" before demanding that counsel take this obligation seriously.

 

 

4

Robinson v. G D C, Inc., No. 1:16-cv-174 (E.D. Va. June 21, 2016)

Court found that amendments to Rule 4(m) preempted Mendez v. Elliott, 45 F.3d 75 (4th Cir. 1995), a decision contrary to the law of most other circuits and which held that if a complaint is not served within 120 days after it is filed, it must be dismissed absent a showing of good cause. The court found that the current Rule 4(m) permitted a court to extend the time to serve process (now 90 days) even absent a showing of good cause.

Gbane v. Capital One, NA, No. PX-16-701 (D. Md. June 29, 2016)

Court found, even after the amendments to Rule 4(m), that Mendez v. Elliott, 45 F.3d 75 (4th Cir. 1995), is still binding on it, and it did not have discretion to grant additional time to serve summons without good cause being shown. The court, thus, dismissed the complaint against the defendants despite the fact that the statute of limitations had run, and plaintiff would be unable to file her complaint.

 

 

16

Wai Feng Trading Co. v. Quick Fitting, Inc., No. 13-33S (D.R.I. June 14, 2016)

The court recognized that the parties could have specified the manner and forms in which electronically stored information could have been produced in the Rule 16 scheduling order that may now "provide for disclosure or discovery of electronically stored information."

 

 

26

Albritton v. CVS Caremark Corp.,

No. 5:13-CV-00218-GNS-LLK (W.D. Ky. June 28, 2016)

Court discussed the amendments to Rule 26(b)(1) and its proportionality standard. Court also states that relevance under Rule 26(b)(1) is construed broadly and that the threshold for showing relevance on a motion to compel is “relatively low.”

Arcelormittal Ind. Harbor LLC v. Amex Nooter, No. 2:15-CV-195-PRC (N.D. Ind. July 8, 2016)

The court discussed the amendments to Rule 26(a)(1) and found that as long as the evidence is within the scope of discovery, as defined in the amended rule, it is irrelevant whether the evidence would be admissible at trial. Thus, the court held that the rule creates “a ban on admissibility-based refusals to provide relevant discovery.”

 

Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., Case No. 1:14-cv-01734-WTL-DML (S.D. Ind. March 24, 2016)

Magistrate judge, in granting a motion for protective order, first discussed judges’ duty to manage discovery and limit discovery that exceeds proportional and proper bounds, and held that categories of documents requested by defendant had only “an attenuated and indirect relationship” with the party’s claims and that the defendant’s argument that the topics were “relevant” was not “good enough.”

In re: Bard IVC Filters Prod. Liability Litig., Case No. MDL 15-02641-PHX DGC (D. Ariz. Sept. 16, 2016)

Plaintiffs sought discovery of communications between foreign subsidiaries and divisions of the defendant that sold allegedly defective product and regulators. Court, in holding that defendant need not search ESI for such communications, looked at the amendment to Rule 26(b)(1), focusing on the elimination of “reasonably calculated to lead to the discovery of admissible evidence” and the requirement that discovery be proportional to the needs of the case. Court found discovery sought only marginally relevant and was “more hope than likelihood.” Court also stated all parties and the court had duty to consider proportionality.

Cole’s Wexford Hotel, Inc. v. Highmark Inc., No. 10-1609 (W.D. Pa. Sept. 20, 2016)

Court discussed the deletion in the amendments to Rule 26(b)(1) of the language that permitted the court, based upon good cause, to order discovery “of any matter relevant to the subject matter involved in the action.” Court found that other courts that hold that discovery is relevant under amended Rule 26(b)(1) if there is any possibility that the information may be relevant to the general subject matter of the action are wrong; now it must be relevant to the claims or defenses of the case and proportional to what is at stake in the case.

Wilmington Tr. Co. v. AEP Generating Co., No. 2:13-cv-01213 (S.D. Ohio Mar. 7, 2016)

Court, faced with a motion to compel by the plaintiff, looked at amended Rule 26(b)(1) and stated that under the proportionality issue, both parties must address the relevant factors. The responding party must meet its burden to explain how costly or time-consuming responding will be, and the moving party must state why the information sought is important to resolving the case and why it would be a good use of the responding party’s resources to look for it.

In re Xarelto (Rivaroxaban) Products Liab. Litig., MDL 2592 (E.D. La. Jan. 26, 2016)

Court applied amended Rule 26(a) and its proportionality standard in denying discovery of a non-party employee’s personnel file because the movant did not make an individualized showing of relevancy, proportionality and particularity.

Siriano v. Goodman Mfg. Co., No. 14-cv-1131 (S.D. Ohio Dec. 9, 2015)

Looking at proportionality under amended Rule 26(b)(1), court required production of voluminous information despite the defendants’ argument that more than “4,000 hours of lawyer review time over several months” would be required to comply, finding that the information sought was “directly related” to the claims at issue, it was “highly unlikely” that the information could be found elsewhere and the information was “readily accessible” to the defendants.

Oracle America, Inc. v. Google Inc., No. 10-cv-03561 (N.D. Cal. Dec. 3, 2015)

Looking at proportionality under amended Rule 26(b)(1), court criticized both parties for failing to address proportionality, but ultimately found that the plaintiff’s request to add 22 Google employees to an existing list of 27 custodians for collection and production of ESI was a burden that exceeded the benefit because the plaintiff had secured ESI from 17 of the proposed custodians years before. The court only allowed 10 additional custodians to be added to the list.

26

Ciuffitelli v. Deloitte & Touche LLP, No. 3:16-cv-0580-AC (D. Or. Nov. 28, 2016)

The court stated that the 2015 amendment to Rule 26(b)(1) that discovery must be “proportionate to the needs of the case,” “necessarily affects the determination whether a discovery stay should be granted pending determination of a dispositive motion.” The court said that the rule required immediate application of the proportionality standards. Ultimately, the court, after looking at proportionality, stayed discovery on disputed issues but permitted some limited discovery pending the outcome of the dispositive motion.

 

 

30

This change incorporates the rule change seen in Rule 26(b)(1)

 

 

 

31

This change incorporates the rule change seen in Rule 26(b)(1)

 

 

 

33

This change incorporates the rule change seen in Rule 26(b)(1)

 

 

 

34

Loop AI Labs Inc. v. Gatti, No. 15-cv-00798-HSG (DMR) (N.D. Cal. May 6, 2016)

Court, faced with a motion to compel by plaintiff, stated that the defendant’s responses failed to comply with Rule 34(b)(2) because, under the 2015 amendments, the objections must state whether responsive documents are being withheld on the basis of any objection, and held that the defendant had to amend her responses to comply with Rule 34(b)(2) with noted exceptions later in the opinion.

 

 

37

Learning Care Group, Inc. v. Armetta, Case No. 3:13-cv-1540 (VAB) (D.C. Con., June 17 2016)

Court was faced with a motion for sanctions for defendant’s destruction of a laptop. Under amended Rule 37(e), the court held that negligence is no longer the standard, rather the destroying party must prove intent to deprive another party of the use of destroyed information. However, because the issue was raised in September 2015, it used the old standard.

Living Color Enters., Inc. v. New Era Aquaculture, Ltd., No. 14-cv-62216 (S.D. Fla. Mar. 22, 2016)

Court found, under amended Rule 37(e), that sanctions were not required against a defendant for spoliation of text messages after he failed to disable a function on his cell phone that automatically deleted messages after thirty days because he did not intend to deprive the plaintiff of ESI. The court also stressed that the amendments to the rule foreclosed reliance on inherent authority or state law on the issue of spoliated ESI.

 

 

55

Castaneda v. Gallegos, No. 15-00847 JCH/CG (D.N.M. April 14, 2016)

Court, faced with a motion to set aside a default judgment, looked to the 2015 amendment to Rule 55(c) and its commentary, which state that relief under Rule 60(b) is available only if there is a final judgment, while all other requests to set aside a default judgment must be decided under Rule 55(c). The court held that the judgment was final, and the movant must satisfy the criteria of Rule 60(b).

 

 

84

Footbalance Sys. v. Zero Gravity Inside, Inc., No. 15-CV-1058 JLS (DHB) (S.D. Cal. Oct. 4, 2016)

Court found that since the abrogation of Rule 84 and the forms in the appendix in the 2015 amendments, including the form for patent cases, that the Rule 8 pleading standards in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) govern in patent cases.


Best Practices

Discovery Sanctions under Amended Rule 37(e): A Safe(r) Harbor

Proportionality under Amended Rule 26(b)(1): A New Mindset

The "Other" December 1 Amendments to the Federal Rules of Civil Procedure


Request for Assistance

The Pretrial Practice & Discovery Subcommittee is committed to being your stop for information related to the 2015 amendments, the 2016 amendments, and cases discussing them. We have provided links to other useful information, as well as case-law summaries that discusses the 2015 amendments. We will also have case-law summaries that discuss the 2016 amendments when they start coming in. We hope that if you have a case you would like to see included or a link that might be useful, you will send it to us. In addition, if you have information or an article that we can use in our “Best Practices” session, based on your own experience with the 2015 amendments or 2016 amendments, please send them to us. Thank you.

Contact Angela Fetcher if you are interested.