New Amendments to the Federal Rules of Civil Procedure Go Into Effect Today
Ellis & Winters
By Paul Cox
The United States Supreme Court issued an order in April adopting new amendments to the Federal Rules of Civil Procedure. Under the Court’s Order, these rules take effect today, December 1, 2015, and “shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”
The following is a summary of the amendments, drawing from the text of the amended rules and from the Notes of the Committee on Rules of Practice and Procedure to the Judicial Conference of the United States (“Committee Notes”), which were submitted to the Court. A redline showing changes to the text of the rules, along with the Committee Notes, can be accessed here.
1. Parties Are Now Responsible for Implementing the Purposes of the Rules (Rule 1)
Rule 1 is slightly amended to emphasize that the parties, not just the courts, are responsible for applying the Federal Rules to secure the “just, speedy, and inexpensive determination” of every case.
These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed,
and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.
The change responds to pleas to discourage parties from abusing procedural tools to increase cost and delay.
2. Shorter Time Limit for Serving a Defendant with a Complaint (Rule 4(m))
The new rules reduce the time limit for serving a defendant with a complaint from 120 to 90 days. This change is designed to reduce delay at the beginning of litigation. In that regard, this amendment complements a change in Rule 16(b)(2), which shortens the time period for the court to issue a scheduling order.
Shortening the time to serve under Rule 4(m) means that the time for notice to a party to be brought in by amending a pleading is also shortened. See Rule 15(c)(1)(C).
3. Live Communication at Scheduling Conferences (Rule 16(b)(1))
The amended rules omit the provision in the outgoing rules permitting a scheduling conference “by telephone, mail, or other means.” Rule 16(b)(1)(B). The rationale is that a scheduling conference is more effective if the court and parties engage in direct simultaneous communication. The Committee Note accompanying the amendment explains that such a conference “may be held in person, by telephone, or by more sophisticated electronic means.”
4. Earlier Scheduling Orders (Rule 16(b)(2))
A court must now issue a scheduling order within the earlier of 90 days after the defendant has been served or 60 days after the defendant has appeared. These time periods are 120 days and 90 days, respectively, in the outgoing rules. However, a court may delay issuing such an order for good cause. The Committee Note explains that cases involving multiple parties and complex issues, for example, may “need extra time to establish meaningful collaboration.” As with the change to Rule 4(m), this change is designed to encourage early and active case management.
5. New Items in Scheduling Orders (Rule 16(b)(3)(B))
The amended rules include three new items which may be included in scheduling orders: (1) provisions for the preservation of electronically stored information, (2) consent orders under Evidence Rule 502 regarding the disclosure of information covered by attorney-client privilege or work product protection, and (3) a requirement that a party request a conference with the court before filing a discovery motion. The courts have discretion on whether to include these matters.
6. New Standard for Discoverable Information (Rule 26(b))
One of the most significant amendments pertains to the scope of discoverable information. Discoverable information now includes “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” The focus on proportionality is the key addition to the Rule.
To explain what “proportional to the needs of the case” means, the Rule incorporates a multi-factor test. That test comes from the outgoing version of Rule 26(b)(2)(c)(iii), which governs limitations on discovery. In the amended rules, the language in Rule 26(b)(2)(c)(iii) has been relocated to the “scope” of discovery section, Rule 26(b)(1), along with one additional factor (underlined below). Under this test, the parties and the court must consider:
- the importance of the issues at stake in the action,
- the amount in controversy,
- the parties’ relative access to relevant information,
- the parties’ resources,
- the importance of the discovery in resolving the issues, and
- whether the burden or expense of the proposed discovery outweighs its likely benefit.
The Committee Note explains that when these proportionality factors were originally added to the Federal Rules, they were intended to be part of the evaluation of the scope of discoverable information. But because these factors did not appear directly under the scope-of-discovery section of the rules, they lost their intended force in practice. The Committee Note thus explains that this amendment “restores the proportionality factors to their original place in defining the scope of discovery.” Although these factors no longer appear in Rule 26(b)(2)(c)(iii), the Committee Note states that “[t]he court still must limit the frequency or extent of proposed discovery, on motion or on its own, if it is outside the scope permitted by Rule 26(b)(1).”
The amended Rule 26(b) also excludes the litany of examples of discoverable items that are in the outgoing Rule: “the existence, description, nature, custody, condition, and location of any document or other tangible things and the identity and location of persons who know of any discoverable matter.” The Committee Note explains that discovery of such items “is so deeply entrenched in practice that it is no longer necessary to clutter” the Rule with them.
Finally, the new Rule 26(b) eliminates a phrase that, according to the Committee, has been used incorrectly to define the scope of discovery: “Relevant information . . . [that] appears reasonably calculated to lead to the discovery of admissible evidence.” This provision is replaced with a clarification that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.”
The Committee Note discussing the revised scope-of-discovery standard is extensive. In the interest of brevity, this summary will not outline that entire discussion. But the passage is worth reading to understand how this set of amendments is intended to work in practice.
7. A Court’s Authority to Shift Costs in Protective Orders (Rule 26(c))
Rule 26(c) is amended to explicitly recognize that a court may allocate costs associated with disclosure or discovery in a protective order. The Committee Note explains that this authority already exists under the rules and is regularly employed, but this addition should “forestall the temptation some parties may feel to contest this authority.” The Committee cautions, however, that this amendment does not change the background assumption that the responding party will ordinarily bear the cost of responding to discovery requests.
8. Early Requests for Production (Rule 26(d)(2))
Rule 26(d) is amended to permit a party to deliver requests for production before the discovery planning conference required under Rule 26(f). A party may make such a request more than 21 days after the summons and complaint have been served. The Committee intends for this amendment to facilitate more productive discussions at Rule 26(f) conferences. For the purposes of responding to early requests, a party is considered to be served with these requests at the time of the Rule 26(f) discovery conference, rather than the time of actual service.
9. Stipulated Sequencing of Discovery Methods (Rule 26(d)(3))
There is now an explicit recognition that parties may prescribe the sequence of discovery methods by stipulation (e.g., depositions after written discovery). The outgoing Rule suggests that only a court order may prescribe such sequencing. Absent such a stipulation or order, the background rule applies, which permits “any” sequencing of discovery methods.
10. New Items in Discovery Plans (Rule 26(f)(3))
In concert with the new items that may be included in a planning order under Rule 16(b)(3)(B), Rule 26(f) is amended to update the list of issues that must be addressed in the parties’ discovery plan. First, the parties must now address the “preservation” of electronically stored information. The Rule already requires parties to address the “disclosure” and “discovery” of such information. Second, although the parties already must discuss whether a court order is required to enforce an agreement regarding the protection of privileged material, the Rule is updated to cite the authority for such a court order: Evidence Rule 502.
11. Updated Cross-References for Discovery Devices (Rule 30(a), (d); Rule 31(a); Rule 33(a))
This set of changes is a formality. These rules concern the standards for obtaining depositions when leave of the court is required, for extending the duration of depositions, and for propounding more than 25 interrogatories. They all cross-refer to the multi-factor proportionality test under Rule 26. These cross-references are now updated to reflect the movement of that test from Rule 26(b)(2)(c)(iii) to Rule 26(b)(1).
12. Regulating Objections to Document Requests (Rule 34(b)(2))
Rule 34 is amended to address the potential for objections to document requests to impose unreasonable burdens on the requesting party. The Rule now requires an objecting party to “state with specificity the grounds for objecting” to a request. An objection must also state whether any responsive materials are being withheld on the basis of the objection.
Rule 34 is further amended to explicitly permit copying, in addition to physically inspecting, documents. This is already common practice. A final amendment clarifies that under the new early document request procedure, see Rule 26(d)(2), the time to respond starts ticking at the discovery planning conference, not when the request is served.
13. Updating the Grounds for a Motion to Compel Production (Rule 37(a))
This amendment clarifies that a party may file a motion to compel not only when another party fails to permit inspection, but also when the other party fails to produce documents. Permitting such a motion is already common practice.
14. Sanctions for Failing to Preserve Electronically Stored Information (Rule 37(e))
This amendment dramatically changes the standard for imposing sanctions for failure to preserve electronically stored information. The outgoing version of the Rule states that a court “may not” impose such sanctions “[a]bsent exceptional circumstances.” Now, the Rule affirmatively authorizes sanctions in certain circumstances. The Rule is motivated by the difficulties in dealing with the exponential growth of electronic information, and by a desire to establish uniform federal standards where the courts of appeals have developed divergent approaches to the problem.
As a threshold matter, for sanctions to be imposed, a party must have “failed to take reasonable steps to preserve” electronically stored information “that should have been preserved in the anticipation or conduct of litigation,” and there must be no way to replace the information through additional discovery. The Committee Note explains that this standard is based on the common law duty to preserve relevant information when litigation is reasonably foreseeable.
If sanctions are warranted under the above standard, the Rule authorizes two sanction methods, depending on how serious the situation is. Under the first provision, if the court finds that the other party is prejudiced by the loss of information, the court “may order measures no greater than necessary to cure the prejudice.” Under the second provision, if the court finds that the party “acted with the intent to deprive another party of the information’s use in the litigation,” the court may impose one of the following sanctions: (a) presume that the lost information is unfavorable to the party, (b) instruct the jury that it may or must presume the information was unfavorable to the party, or (c) dismiss the action or enter a default judgment. The court has discretion to impose sanctions. They are not required.
The Committee Note explaining this rule change includes a thorough discussion of how Rule 37(e) is intended to operate in practice. In the interest of brevity, this summary will not go into that discussion. But the passage is worth reading for the purposes of advising clients on electronically stored information and preparing to litigate sanctions motions for lost information.
15. Standards for Setting Aside a Default Judgment (Rule 55(c))
This amendment clarifies that the demanding standards a party must meet to set aside a default judgment under Rule 60(b) apply only when the default judgment is final (i.e., not when the judgment disposes of only some of the claims).
16. Removing the Appendix of Forms (The Appendix of Forms; Rule 4(d); Rule 84)
The new Rules no longer include the Appendix of Forms. Because there are many alternative sources for such forms, including the websites of the Administrative Office of the United States Courts and the individual district courts, the Committee determined that it was no longer necessary to append forms to the Federal Rules.
This change results in two consequent changes to the rules. First, Rule 84 is now eliminated. That Rule merely explains the purpose of the Appendix. Second, the removal of the Appendix required an amendment to Rule 4(d), which governs requests for a waiver of service of a summons. The outgoing version of Rule 4(d) referred to Forms 5 and 6 in the Appendix, which are the waiver-request and waiver-acknowledgment forms. See Rule 4(d)(1)(C), (D). The Committee decided to keep these two forms in the Federal Rules. Accordingly, these two forms are now appended to the end of Rule 4, and the text of the Rule has been updated to reflect this change.
As this summary demonstrates, the Supreme Court adopted some significant amendments to the Federal Rules of Civil Procedure this year. Chief among these are the focus on proportionality in defining the scope of discovery and the authorization of sanctions for failure to preserve electronically stored information. Starting today, we will see just how much these amendments will change the practice in federal court.