The proportionality rule signals a sea change in the scope of discovery. “The biggest change will be proportionality and getting rid of the phrase ‘reasonably calculated to lead to the discovery of admissible evidence’ in Rule 26,” says Michele D. Hangley, Philadelphia, PA, cochair of the Rules Amendments Roadshow and member of the Section’s Federal Practice Task Force. “Previously, the ‘reasonably calculated’ phrase had been moved to a less prominent place,” she says. “Now it has been removed from the rule entirely.” Removing the “reasonably calculated” phrase, Hangley suggests, “will make a difference in how parties justify the discovery that they are seeking.”
Speeding Up Cases
The amended rules also shorten up the deadlines in early case management. Under amended Rule 4, the court must dismiss an action if the complaint is not served within 90 days, shortening the period by 30 days from the old rule. Revised Rule 16 now requires a scheduling order 30 days earlier as well. Another feature of revised Rule 16 is that “it states that the court has the option of ordering that parties must request a conference before filing a motion to compel,” says Hangley. She suggests that this can decrease the amount of time spent on discovery motions.
These changes, designed to speed up case management, are tied to the narrowing of discovery. “The objective of the changes is to do discovery smarter and to focus case management on what will dispose of a case,” says Laurence F. Pulgram, San Francisco, CA, chair-elect of the Section of Litigation.
Leaders Go on the Road to Discuss New Changes
“The new rules are the best and likely the only opportunity of the decade to affect the cost and scope of discovery,” says Pulgram. As a result, the Section has developed a Rules Amendments Roadshow, entitled: “Hello ‘Proportionality,’ Goodbye ‘Reasonably Calculated’: Reinventing Case Management and Discovery Under the 2015 Civil Rules Amendments.” The roadshow is a 13-city program designed to highlight the new rules. The roadshow begins in November 2015, ahead of the December 1, 2015 effective date for the rules changes, and continues into spring 2016.
The Rules Amendments Roadshow is a result of collaboration with the Duke Law Center for Judicial Studies. “The Litigation Section, being institutionally interested in making discovery less expensive, partnered with Duke University to create this 13-city program on how these new rules are affecting civil practice,” observes Pulgram. “We are trying to collect the leading architects of the rules, judges, and [magistrate judges] in these locations around the country to engage in a dialogue and dive into the rules changes, and how the bar can use them to improve the way we litigate.”
At each location, Pulgram explains, there will be local judges, magistrate judges, and members of the defense and plaintiffs’ bars. “I think the Rules Roadshow will provide an opportunity to lawyers and judges to shape litigation practice going forward and powerful insight into how judges think about litigation and the cases they oversee,” says Beth L. Kaufman, New York, NY, cochair of the Rules Amendments Roadshow and the Section’s liaison to the ABA’s Commission on Women in the Profession. “It will be a very interactive dialogue to discuss the myriad of ways proportionality can be achieved among the judges and lawyers on the dais who practice in these courts.”
The Section of Litigation and Duke have created websites for the roadshow, with agendas, times, dates, and registration information. The roadshow begins New York, NY in November 2015. Litigation News will be providing additional coverage about these changes, including an in-depth look at the amended Federal Rules of Civil Procedure in its upcoming winter 2016 print edition.
Andrew J. Kennedy is an associate editor for Litigation News.