Are you up to date on the significant amendments to the Federal Rules of Civil Procedure from just over a year ago? Here’s what you need to know now:
1. Cooperation requirement (Rule 1). This rule provides that the rules should be “employed by the court and the parties” to accomplish their purpose, making explicit that you share with the court the responsibility to secure a just, speedy, and inexpensive determination of every action. This rule highlights your obligation to cooperate with opposing counsel, while zealously representing your client.
2. Expedited deadlines (Rules 4(m) and 16(b)(2)). Rule 4(m) reduces the amount of time to serve a defendant after a complaint is filed from 120 days to 90 days. Rule 16(b)(2) reduces the time for a judge to issue a scheduling order to 90 days after any defendant has been served, or 60 days after a defendant has appeared, whichever is earlier. Both time periods were reduced by 30 days from the prior rule.
3. Scope of discovery (Rule 26(b)(1)). This rule defines the scope of discovery to be constrained by what is “proportional to the needs of the case,” listing specific proportionality considerations, and provides that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable,” simplifying prior language in that regard.
4. Scheduling orders and discovery orders (Rules 16(b)(3) and 23(f)(3)). Rule 16(b)(3) adds that the scheduling order may provide for: preservation as well as the disclosure and discovery of electronically stored information (ESI); agreements pursuant to Federal Rule of Evidence 502 governing attorney-client privilege and work product; and a court conference before a party files a motion related to discovery. In accordance with Rule 16, Rule 26(f)(3) requires that the parties’ discovery plan state the parties’ views and proposals on any issues regarding preservation as well as the disclosure and discovery of ESI, and other discovery matters.
5. Cost of discovery (Rule 26(c)(1)(B)). This rule provides for protective orders to shift discovery costs.
6. Sanctions (Rule 37(e)). This rule provides standards for imposition of sanctions and curative measures regarding ESI.
7. Early requests for production (Rules 26(d)(2) and 34(b)(2)(A)). Even before the Rule 26(f) conference, but no sooner than 21 days after service of the summons and complaint, you can now serve requests for production, with certain exceptions. The responding party has 30 days from the Rule 26(f) conference to respond.
8. Discovery stipulations (Rule 26(d)(3)). This rule recognizes that the parties may stipulate to case-specific discovery sequences.
9. Limitation on objections to discovery (Rule 34(b)(2)). You must state with specificity the grounds for objecting and whether any responsive materials are being withheld.
In addition, Rule 55(c) clarifies that a court is empowered to set aside a final default judgment under Rule 60(b); Rule 84, regarding forms of pleadings, is abrogated.
Stewart Edelstein, who taught clinical courses at Yale Law School for 20 years during his 40-year career as a trial lawyer, is the author, most recently, of How to Succeed as a Trial Lawyer: All The Essentials, Including What You Didn’t Learn in Law School, 2d ed. (ABA), available in early 2017.