Effective December 1, 2015, changes to the Federal Rules of Civil Procedure (“Rule(s)”) will alter the ways in which litigants approach case preparation and discovery. The most significant changes, as addressed below, are being made to Rules 16, 26, 34 and 37, with a focus on early case management, discovery proportionality and document preservation with the goal of expediting litigation and encouraging cooperation among the parties. In theory, these changes force the parties to address the material issues in dispute earlier and eliminate the ability to unreasonably delay the litigation.

Federal Rule of Civil Procedure 16
Rule 16 currently allows for the initial conference between the parties without the need for active discussions. The amendment now requires “direct communication”, meaning in person, telephone or other sophisticated electronic means, which the court believes will encourage effective early communication between the parties and more efficient scheduling conferences. In addition, the scope of a scheduling order has been expanded to permit parties to include agreements concerning the preservation of Electronically Stored Information (“ESI”) and agreements reached under Federal Rule of Evidence 502 (attorney client privilege and work product). The changes also reduce the time for the Court to issue the scheduling order by 30 days. The goal of the Rule 16 changes is to bring the parties together early to engage in meaningful discussion of the merits, which will permit the court to set an expedited schedule to swiftly conclude the case.

Federal Rule of Civil Procedure 26
Rule 26 currently allows the scope of discovery to include any non-privileged matter that is relevant to any party’s claim or defense.  Recognizing that Rule 26 as it currently stands permits overly broad discovery, the amendment to Rule 26 restores proportionality to the discovery process. Notably, the language “reasonably calculated to lead to the discovery of admissible evidence” was removed in favor of “information within the scope of discovery need not be admissible in evidence to be discoverable.” As such, Rule 26 now requires discovery be limited not only to matters relevant to any party’s claim or defense but, additionally, a balance between the burden and expense of the request and the importance of the issues to the case and the amount in controversy. The comments to the amendment to Rule 26 states “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” In short, a party will no longer be able to propound overreaching discovery requests under the guise that the requested documents could lead to the discovery of admissible evidence. Rather, the requested documents must themselves be relevant to the issues in the case.

Federal Rule of Civil Procedure 34
Rule 34 currently allows for a party to object to a discovery request without identifying whether any documents have been withheld based on that objection. The amendment has been designed to resolve this issue. The new language provides that “[a] objection must state whether any responsive materials are being withheld on the basis of that objection.” In addition, in an attempt to alleviate parties’ inability to search for and analyze documents responsive to a discovery request within 30 days as currently contemplated by Rule 34, the new amendment allows document requests to be delivered prior to the Rule 26(f) conference, but not considered served until the Rule 26(f) conference.

Federal Rule of Civil Procedure 37
As Rule 37 currently stands, sanctions for inadvertent failures to preserve ESI are currently as severe as those for intentional destruction of ESI evidence. The amendments to Rule 37 recognize a distinction between intentional and negligent destruction of ESI. The practical application of these changes only allows for the harshest sanctions such as, adverse inference or even the dismissal of the action, based on intentional destruction of ESI. In contrast, a negligent action of a party resulting in either the failure to preserve or the destruction of ESI can only be met with “measures no greater than necessary to cure the prejudice.”

The 2015 Federal Rules of Civil Procedure amendments were created to tighten the time frame of the initial litigation and discovery stages, narrow the scope of discovery, clarify objections to document requests, and direct sanctions according to conduct related to the preservation of ESI. These amendments take effect on December 1, 2015, and govern all civil case proceedings commenced after that date and may be applied to pending proceedings insofar as it is just and practicable. The impact of these collective changes will be to force the issues in dispute to the forefront of the litigation and prevent the parties from hiding behind blanket objections in an attempt to avoid their discovery obligations.

A chart of the specific changes to Rules 16, 26, 34 and 37 is available here. For a comprehensive review of the all of the changes to the Rules, please contact Samuel Thomas.


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