Over the course of the last two decades, the cost of litigation has grown exponentially, in large part due to the cost of e-discovery resulting from the abundance of electronically stored information (“ESI”). In an effort to reduce cost and increase efficiency of litigation in federal courts, on December 1, 2015, several significant changes to the Federal Rules of Civil Procedure took effect. The new Rules will apply to cases already in progress provided such application is “just and practicable” and to all newly filed cases. The most noteworthy and significant changes to the Rules include:
- A shortened time period for serving a defendant from 120 days to 90 days.
- Scheduling orders will be issued 90 days after any service upon defendant (reduced from 120 days) or 60 days after any defendant has appeared (down from 90).
- Removal of the language “that may lead to the discovery of admissible evidence,” from the definition for the scope of discovery.
- Greater emphasis on a set of proportionality factors to help limit the scope of discovery.
- A requirement that objections to requests for production be more specific and state whether any documents are being withheld due to the objection.
- Review and production of documents within a stated “reasonable time.”
While the changes are intended to make discovery more efficient and less costly, time will tell whether they will achieve the desired effects. In any event, litigants should be familiar with these changes since they will unquestionably impact the procedure for conducting discovery in federal courts.
Rule 4 & Rule 16 – Time and Collaboration
Several of the amendments seek to shorten time requirements and encourage more collaboration among the parties upfront in an effort to streamline litigation. For example, Rule 4(m) now reduces the time to serve a summons and complaint from 120 to 90 days. Amended Rule 16(b)(2) reduces the time for a court to issue discovery orders by 30 days.
Amendments to the Rules also signal that the judiciary will require the parties to collaborate initially in an effort to avoid disputes later in the litigation. For instance, Rule 16 requires that the parties address ESI preservation as a topic in all discovery plans. This should force the parties to address document preservation and deal with any issues related to ESI early on in the litigation.
Rule 26 – The Scope of Discovery
Under revised Rule 26(b)(1), the scope of discovery is limited to nonprivileged, relevant information that is “proportional” to the needs of the case, as defined by six factors:
- importance of the issues at stake in the action;
- amount in controversy;
- parties’ relative access to relevant information;
- the parties’ resources;
- importance of the discovery in resolving the issues; and
- whether the burden or expense of the proposed discovery outweighs its likely benefit.
These proportionality factors are not new, but have been moved up in the rule increasing their prominence and (hopefully) utilization. In fact, for decades, most of the proportionality factors were buried in Rule 26 and used only in motions for protection. To address this underutilization, the proportionality factors now appear in subsection (b)(1), making them an explicit component of the general definition of the scope of discovery.
Now that the scope of discovery is expressly tied to proportionality, requiring litigants to tie their discovery requests to these factors, courts will be required to do the same in resolving discovery disputes. This change is particularly interesting because it alters the burden in defining the scope of discovery. Prior to the amendments, a requesting party merely had to ensure it was requesting information that could lead to the discovery of admissible evidence. Post-amendments, a requesting party bears a higher burden of addressing at least some of the proportionality factors and explaining how the requested information will advance the litigation.
The takeaway for parties with respect to the proportionality factors is that attorneys will likely need to spend more time drafting discovery requests tailored to the proportionality factors. In practice, the amendment may actually increase the cost of discovery in the initial phases. Nevertheless, the objective is that front-loading the work that goes into drafting discovery requests will reduce the cost associated with discovery disputes later in the case. However, it remains to be seen if the results will actually be more tailored requests and a reduction of discovery disputes in the later phases of litigation.
Rule 34 – Responding to Requests for Production
In addition to limiting the scope of discovery under Rule 26, the amendments also alter the rules regarding the production of documents. Under the amended Rule 34(b) a party responding to requests for production must now: (1) provide more specificity on the grounds for objecting to discovery; (2) state whether any responsive materials are being withheld on the basis of any objections; and (3) produce or permit the inspection of documents within a “reasonable time.” Complying with these will require more upfront work in responding to discovery requests.
For example, a party responding to discovery requests must now state the specific grounds or basis for the objections. Rather than a blanket assertion that a request is “unduly burdensome,” the responding party must specify the burden. Similarly, rather than asserting that a request is “vague” or “ambiguous,” the responding party must explain why exactly the request is unclear.
The revised Rule 34(b) also requires that, for every objection, the objecting party “state whether any responsive materials are being withheld on the basis of that objection.” This revision is designed to help avoid disputes over objections when in fact the objecting party is not withholding documents. According to the Advisory Committee Notes, the objecting or responding party is not required to specifically identify the documents being withheld. Instead, the responding party meets its obligation by stating the limits or parameters that have controlled the search for documents.
Another significant change to Rule 34(b) is that it mandates that any production “be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” In other words, a party may no longer serve objections with a statement that documents will be produced at a future unspecified date or timeframe. Instead, documents must be produced either within a “reasonable time” or by the date stated in the request. “Reasonable time” is not defined by the Rule, which will likely lead to discovery motions as to its meaning. Setting this aside, this modification to Rule 34(b) requires parties to collect and produce documents within a “reasonable” or shorter period than the prior rule. As a result, responding parties will have to incur the time and expense of often voluminous document collections and reviews in a compressed time period.
The takeaway is that parties will need to collect and review client documents beforeobjecting. Thus, while the Rules may narrow the timeframe for discovery, it could also raise the costs.
The 2015 revisions to the Federal Rules of Civil Procedure will unquestionably change the landscape and practice of conducting discovery in federal courts. The changes may shorten the scope and time for discovery, thereby playing a role in advancing resolution of issues and matters, curtailing discovery costs, and focusing parties and courts on the key issues. However, only time will tell how the changes will actually play out and whether they will achieve their intended purpose to control ever increasing discovery costs. In large part, the courts’ enforcement and interpretation of these new Rules will dictate how the changes take effect. Parties can best leverage these changes by becoming familiar with the specific revisions and their intended purposes.