Amendments to Federal Rules of Civil Procedure

AMENDMENTS TO FEDERAL RULES OF CIVIL PROCEDURE:

WILL THEY REDUCE THE SCOPE AND COST OF DISCOVERY?

By: Armin J. Moeller, Jr.

Balch & Bingham LLC

188 East Capitol Street,, Suite 1400, Jackson, Mississippi 39201

601-965-8156

Malinda Gaul

Gaul Dumont

924 Camaron Street

San Antonio, Texas 78212

210-225-0685

1.Effective Date – December 1, 2015

2.Coverage – All proceedings commenced after December 1, 2015 and those pending “insofar as just and practicable.”

3.Rules Amended – 1,4,16,26,30,31,33,34,37,55 and 84

4.Scope Of Discovery – Rule 26(b)(1)

Prior “…Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense…including the existence, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter ….”

Present – “…Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case considering 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….”

A.Except For New Proportionality Factor, Other Five Factors Appeared In Former Rule 26(b)(2)(C) Which Governed Court-Ordered Limitations On Discovery

B.Advisory Committee Intends Amendment To Reduce CostsOf Discovery Which Are“Disproportionally High.”

5.New Proportionality Factor – “The Party’s Relative Access To Relevant Information.”

A.Recognizes “Information Asymmetry” – Party Seeking Discovery May Know Little Compared To Responding Party

B.Subject to Greater Discovery Burden?

C.Parties to Consider Proportionality When Serving and Responding To Discovery Requests

D.Rule 26 Committee Note – “It also is important to repeat the caution that the monetary stakes are only one factor, to be balanced against other factors…the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance for beyond the monetary amount involved.”

E.Which of Six Factors May Receive Emphasis? How Does the Cost and Scope of Discovery Affect Outcomes?

6.Clarification Of Scope Of Discovery – 26(b)(1)

Prior – “…for good cause, the Court may order discovery on any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence….”

Present – “Information within the scope of discovery need not be admissible in evidence to be discoverable.”

(1)Committee Note States – Used By Some, Incorrectly, To Define the Scope of Discovery.

(2)Inadmissibility Still Not Basis to Object to Discovery.

7.Request for Production Before Rule 26(f) Conference - Rule 26(b)(2)

Prior – Section moved to 26(b)(3)with minor edit

Present –

(1)More Than Twenty-One Days After the Summons and Complaint are Served on a Party, a Request Under Rule 34 May Be Delivered;

a.to that party by any other party, and

b.by that party to any plaintiff or any other party that has been served

(2)The Request is Considered to Have Been Served at the First Rule 26(f) Conference

a.Can serve RFPs as soon as twenty-two days after service of complaint/summons.

b.Time for response begins counting down at 26(f) conference.

c.Designed to make 26(f) conferences more productive/streamline discovery.

d.Will it happen?

8.Rules 34 Document Production – 3 Significant Changes - Rule 34(b)(2)(B)

Prior – “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state [an objection] to the request including the reasons.”

Present – “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.”

(1)Does “State with Specificity the Grounds for Objecting” Prohibit “Vague and Ambiguous” or “Unduly Burdensome” Objections?

(2)Completion “No later Than the Time for Inspection Specified in the Request or Another Reasonable Time…” What is a “Reasonable Time?”

(3)Practical Difficulties of Applying Rule/Urgency in Collecting/Assessing Information?

9.What is Withheld/Produced - Rule 34(b)(2)(C)

Prior – “An objection to part of a request must specify the part and permit inspection of the rest”

Present – “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.”

(1)For Every Objection, Propounding Party Must “State Whether Any Responsive Materials are Being Withheld on the Basis of that Objection.”

(2)Rule Designed to Improve Clarity

(3)Nevertheless, Amended Rule Requires Confirmation, not Identification ofDocuments beingWithheld

(4)How will Judges Interpret/Apply?

10.Failure to Preserve Electronic Information – Rule 37(e)

Prior – “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine good-faith operation of an electronic information system.”

Present – “If electronically stored information that should have been preserved in the anticipation and/or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1)Upon Finding Prejudice to Another Party from Loss of the Information, May Order Measures No Greater than Necessary to Cure the Prejudice; or

(2)Only Upon Finding That the Party Acted with the Intent to Deprive Another Party of the Information’s Use in the Litigation May:

a.Presume that the lost information was unfavorable to the party;

b.Instruct the jury that it must presume the information was unfavorable to the party; or

c.Dismiss the action or enter a default judgment.

A.Committee Note - Rule “Has Not Adequately Addressed the Serious Problems Resulting from the Continued Exponential Growth and the Volume of [ESI]”

B.New Rule Intended to Foreclose Reliance on Court’s Inherent Authority or State Law

C.Committee’sClarification ofRule 37(e) Does Not Affect Independent State Law Claims for Spoliation

D.Rule Does Not Create Duty to Preserve – Based on Existing Common-Law Duty

E.Designed toLimit Most Severe Sanctions to Intentional Loss or Destruction

11.Service of Summons – Rule 4(m)

A.Reduces Time for Serving Defendant from 120 to 90 Days from Filing of Complaint

12.Issuance of Scheduling Order – Rule 16(b)(2)

A.Reduces Time for Judge to Issue from 120 Days After Service to 90 days or From 90 Days After Any Defendant has Appeared to 60 days

13.Altering Sequence of Discovery – Rule 26(d)(3)

A.Allows Parties to Agree to Case Specific Sequence of Discovery

14.Scheduling Conference – Rule 16(a)

A.Seemingly Does Away with Conferences by Mail

15.Additional Content in Scheduling Orders and Discovery Plans – Rules 26(f)(3) and 16(b)(3)

A.Discovery Plan Must State Parties’ Views/Proposals on (1) Issues about Preservation of ESI and (2) Whether to Ask Court to Include Their Agreement about Attorney-Client or Work Product Protection Privileges in an Order Under FRE 502

16.Employing Rules Responsibility of All Parties – Rule 1

A.To be “construed, administered and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action….”

17.Reducing Cost/Scope of Discovery: Haven’t We Been Here Before?

A.How/Why Have Previous FRCP Amendments Failed?

B.Will These Amendments Succeed Where Previous Amendments Failed?

C.Will Judges Make a Different This Time?

18.Setting Aside a Default – Rule 55(c)(a)

A.Amended to Clarify Rule 60(b) Standards Only Apply When Seeking Relief from a Final Judgment. Default Judgment Disclosing of Less than All Claims not a Final Judgment.

19.Elimination of Appendix of Forms

A.Abrogated. Form of Waiver of Service Incorporated in Rule 4’s Text.

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