New Federal Rules of Civil Procedure set to take effect December 1, 2015, will have significant impact on patent litigation across the country. In fact, these changes are substantial enough that they may cause courts to rethink and revise local patent rules to accommodate the changes. It is important, therefore, to understand the rule changes. This post analyzes the critical changes and lays out how they impact patent litigation.
Rule 26(b). Perhaps the biggest change to the Federal Rules is discovery limits. Instead of allowing discovery reasonably calculated to lead to admissible evidence, the Rules instead require discovery be “proportional to the needs of the case.” It is as yet unclear how courts view proportionality, however it could cause a great reduction in email production in patent litigation specifically. That would be a major benefit to all involved in most patent litigation cases. It would also be a massive cost savings.
Rule (4). The deadline to serve a complaint has been reduced 30 days — from 120 days to 90 days.
Rule 16(b). The judge must issue a scheduling order within the earlier of 90 days after any defendant has been served or 60 days after any defendant has appeared. While most cases in districts with local patent rules get moving quickly today as it is, this Rule will require that cases not be parked for 90 days or more while the parties attempt to settle or simply let the case lay dormant.
Rule 26(d)(2). The parties are free to serve discovery requests before the Rule 26 conference, but they do not have to be responded to until after the Rule 26 conference. This is intended to allow the parties to show each other what discovery they may want. I doubt many litigants will take advantage of this Rule change, but it could make Rule 26 conferences much more practical and, therefore, more valuable in resolving issues in advance and streamlining cases.
Rule 26(d)(3). Parties may stipulate to phasing fact discovery without court approval, although I expect many litigants will still seek court approval, or at least file stipulations advising the court of staged discovery.
Rule 34. Another major revision to the rules are those dealing with responding to discovery requests. Rule 34 will require that a party specifically object to requests and that production or inspection of documents must occur “not later than the time for inspection specified in the request or another reasonable time specified in the response.” Of course, courts and parties will have to sort out what is a reasonable time, but it’s a major step forward to require production close in time with document request responses.