Do you know about the amendments to the Federal Rules of Civil Procedure that will take effect on December 1, 2015? The amendments touch a variety of issues, but most significantly impact the scope of permissible discovery and the duty to preserve electronically stored information (and the sanctions for not doing so). Here are some of the noteworthy changes.
- Time for service of summons: The time limit for service of summons has been decreased from 120 to 90 days after the complaint is filed. See Fed R Civ P 4(m). This shortened time will mean that the required time for notice for relation back under Rule 15(c)(1)(C) will also be shortened.
- Scheduling orders:
- Before issuing a scheduling order, judges have to consult with the parties’ attorneys and any unrepresented parties at a scheduling conference. Fed R Civ P 16(b)(1)(B). Under the amendment, this conference may no longer occur via telephone, mail, or other means because a “scheduling conference is more effective if the court and parties engage in directed simultaneous communication.”
- The time limit for a judge to issue a scheduling order has been decreased to within the earlier of 90 days (instead of 120 days) after any defendant has been served with the complaint or 60 days (instead of 90 days) after any defendant has appeared. Fed R Civ P 16(b)(2).
- Scheduling orders should now provide not only for the disclosure or discovery of electronically stored information, but also its preservation. Fed R Civ P 16(b)(3)(B)(iii).
- Scheduling orders may direct the parties to request a court conference before making a discovery motion. Fed R Civ P 16(b)(3)(B)(v).
- Scope of discovery:
- The description of the permissible scope of discovery has been amended. Rule 26(b)(1) now states that a party’s right to discovery must be “proportional to the needs of the case” and includes the considerations bearing on proportionality that now appear in Rule 26(b)(2)(C)(iii), with the additional consideration of the parties’ relative access to the relevant information.
- A new subdivision (Rule 26(d)(2)) allows a party to serve a Rule 34 request more than 21 days after that party has been served with the complaint even though the parties haven’t yet had a Rule 26(f) conference.
- Requests for production under Rule 34:
- The rule now mandates that the responding party “state with specificity the grounds for objecting to [a] request.” Fed R Civ P 34(b)(2)(B). And an objection must state whether any responsive materials are being withheld based on that objection.
- Rule 34(b)(2)(B) is also amended “to reflect the common practice of producing copies of documents or electronically stored information rather than simply permitting inspection.” Committee Note to Rule 34.
- Preservation of electronically stored information (ESI):
- New Rule 37(e) provides that if ESI that should have been preserved in the anticipation or conduct of litigation is lost because the responsible party didn’t take reasonable steps to preserve it (and the ESI can’t be restored or replaced) and this failure prejudices another party, the court may order “measures no greater than necessary to cure the prejudice.” Fed R Civ P 37(c)(1). And if a party intentionally fails to preserve ESI, the court may presume that the lost information was unfavorable, instruct the jury that it was unfavorable, or even dismiss the action or enter a default judgment. Fed R Civ P 37(c)(2).
Learn more about the key aspects of the amendments from Federal Magistrate Judge Jacqueline S. Corley and federal practitioner Robert M. Fineman at CEB’s program FRCP Amendments—Keeping Discovery In Perspective on December 2nd, Live in San Francisco and by Livecast.
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