On April 29, 2015, the United States Supreme Court adopted the long anticipated amendments to the Federal Rules of Civil Procedure.  Pending Congressional review, the amendments will become law on December 1, 2015.  Together, the adopted amendments evidence the Court’s emphasis on promoting cooperative case management and reducing the delays and considerable costs often associated with the discovery process.

In pertinent part, amendments to Civil Rules 1, 4, 16, 26, 34, and 37 promote early and effective case management, enhance the means of keeping discovery costs proportional to the underlying litigation, increase the specificity requirements of discovery objections, and standardize the penalties for breaching a duty to preserve electronically stored information.  This article does not attempt to summarize each adopted amendment but instead provides a brief summary of the most noteworthy amendments and their impact on the federal practice.  A complete set of the amended and adopted rules may be accessed by clicking here.[1]

Rule 1: Scope and Purpose

Hyper-adversarial behavior often leads to exponential increases in litigation costs and delays to the detriment of both the court and the parties.  The Supreme Court’s revisions to Rule 1 obligate the court and the parties to employ the Rules of Civil Procedure to secure the just, speedy, and inexpensive determination of every action, stating:

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.

As noted by the Committee on Rules of Practice and Procedure (“Committee”), the amendment to Rule 1 signals an intent, at the outset, to foster a cooperative and proportional use of the rules to temper the “over-use, misuse, and abuse of procedural tools that increase cost and result in delay.”[2]  This theme is embraced throughout the adopted amendments.

Rules 4 and 16: Expedited Summons and Pretrial Scheduling

Amended Rules 4 and 16 provide for a 30-day reduction in the time to serve summons on a defendant and for the court to enter a scheduling order.  Under the amended rules, the time for serving a defendant with the initial summons is reduced from 120 days to 90 days.  Similarly, the time for the court to issue a scheduling order is reduced to the earlier of 90 days (instead of 120 days) after any defendant has been served, or 60 days (instead of 90 days) after any defendant has appeared.  These amendments will reduce the delays encountered at the beginning of litigation and expedite the initial process for litigants.

Rule 16(b)(3)(v) is also amended to permit a court’s scheduling order to “direct that before moving for an order relating to discovery, the movant must request a conference with the court.”  Similar provisions are already found in the local rules for many federal courts but this amendment to Rule 16 standardizes the authority of a federal court to require such a conference in an effort to avoid unnecessary and costly discovery motion practice.

Rule 26: Refining the Scope and Proportionality of Discovery

Amended Rule 26 clarifies the permissible scope of discovery and emphasizes the need to balance the importance of the requested information against the burden of producing it.  In pertinent part, the amendment to Rule 26(b)(1) explains:

Unless otherwise limited by court order, the scope of discovery is as follows:  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.  Information within this scope of discovery need not be admissible in evidence to be discoverable. including the existence, description, 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.  For good cause, the court may order discovery of 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.  All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

As amended, Rule 26 makes clear that the scope of discovery includes information that is relevant to any party’s claim or defense and is proportional to the needs of the case.  The amendment deletes the current provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence” because, as the Committee explains, this phrase “has been used by some, incorrectly, to define the scope of discovery.”  The misused phrase is replaced by the clearer statement that “Information within this scope of discovery need not be admissible.”  The amendment seeks to curb the misapplication of the phrase “reasonably calculated to lead to the discovery of admissible evidence” that often leads to unnecessary increases in the scope and cost of discovery.

The amendments to Rule 26 also emphasize the need to balance the competing interests at issue in a discovery request to ensure that discovery is proportional to the needs of the case.  The list of considerations that bear on proportionality is moved to the section defining the scope of discovery in order to reinforce the obligation of the parties to consider these factors in making discovery requests, responses, and objections.

Amended Rule 26(c)(1)(B) also explicitly provides for a cost-shifting mechanism allowing for the use of protective orders to shift the cost burden of discovery onto the requesting party.  Courts already have the authority to enter such an order but the explicit recognition of this practice is intended to forestall the temptation some parties may feel to contest this authority.  The Committee notes, however, that “the authority does not imply that cost-shifting should become a common practice” and litigants can still “assume that a responding party ordinarily bears the cost of responding.”

Rule 34: Objections to Requests for Production of Documents

Amended Rule 37 provides that objections to requests for production “must state whether any responsive materials are actually being withheld on the basis of that objection.”  The producing party does not need to provide a detailed description of all documents withheld.  The producing party simply needs to alert the requesting party that materials are being withheld under an objection in order to facilitate an informed discussion of the objection.  Further, if an objection recognizes that some part of the request is appropriate, the objection should reflect this distinction and provide a response to the appropriate portion of the request.  The Committee explains that the general intent of this amendment is to “end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections.”  These changes are aimed at streamlining discovery by reducing the potential for a party to impose unreasonable burdens or create delay through objections to requests for production.

Rule 37: Standardized Remedies for Failing to Preserve Electronically Stored Information

Rule 37 was amended in an effort to address what the Committee calls “the serious problems resulting from the continued exponential growth in the volume” of electronically stored information (“ESI”) in litigation and to resolve the inconsistent sanctions or curative measures imposed by federal courts on parties who failed to properly preserve ESI.  The revisions to Rule 37(e) read as follows:

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 routine, good faith operation of an electronic information systemIf electronically stored information that should have been preserved in the anticipation 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:
    1. Presume that the lost information was unfavorable to the party;
    2. Instruct the jury that it may or must presume the information was unfavorable to the party; or
    3. Dismiss the action or enter a default judgment.

A party has a duty to preserve relevant ESI when litigation is reasonably foreseeable; this duty remains unchanged.  Amended Rule 37(e) simply standardizes the remedies available following a party’s breach of this duty.  As amended, a court may apply curative remedies when three criteria are met, including: (1) the lost ESI “should have been preserved in the anticipation or conduct of litigation,” (2) the ESI was lost because a party did not “take reasonable steps to preserve it,” and (3) the loss of the ESI cannot be remedied by “additional discovery.”  If all these criteria are met and the court finds the requesting party is prejudiced by the lost ESI, the court may order a curative remedy but the remedy can be “no greater than necessary to cure the prejudice.”  Rule 37 clarifies that severe penalties such as an adverse inference, jury instruction or dismissal can only be applied if the three above-enumerated criteria are met and the court finds that the ESI was lost or destroyed “with the intent to deprive another party of the information’s use in the litigation.”  Notably, as amended, if the court finds that ESI was intentionally lost or destroyed, severe penalties such as dismissal may apply even in the absence of prejudice to the requesting party.

Amended Rule 37 does not affect the validity of tort claims for spoliation if state law applies, but the Committee anticipates that the revisions will help alleviate the concern that often causes parties to “[e]xpend excessive effort and money on preservation [of ESI] in order to avoid the risk of severe sanctions if a court finds they did not do enough.”  Adverse-inference instructions were developed as a remedy premised on the belief that a party’s intentional loss or destruction of evidence gives rise to the reasonable inference that such evidence was unfavorable.  Unintentional, negligent or reckless behavior does not support that inference.  As the Committee explains, “the remedy should fit the wrong.”  Accordingly, amended Rule 37 limits severe remedial measures to instances where ESI is intentionally lost or destroyed to prevent another party from using it.

Conclusion: A Client-Benefitting Focus on Efficient Litigation

The principle driving forces behind the amendments to the Federal Rules of Civil Procedure are the goals of ensuring cooperative case management and restraining the misuse of the rules to create delays and increase the cost of litigation.  The amendments emphasize that the courts and the parties share in the responsibility of employing the rules of procedure to secure a just, speedy, and inexpensive determination of every action.  On December 1, 2015, pending Congressional review, these prudent amendments will become law and will hopefully serve to reduce hyper-adversarial abuses of the rules and promote more cost-effective and efficient advocacy to the benefit of all litigants.