New procedural rules will impact both deadlines and the substantive handling of new and pending civil cases in federal court. At least 35 States base their own rules of civil procedure on the federal rules, so the impact of these changes may be even more widespread.
Amendments to the Federal Rules of Civil Procedure adopted by the Supreme Court in April 2015 and accepted by Congress took effect on December 1. The changes affect Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84, and the Appendix of Forms. The amendments govern all proceedings commenced on or after December 1, 2015, and all proceedings then pending “insofar as just and practicable.”
We've summarize key changes, with comments, below.
Rule 4 - Service
The time for service of process under Rule 4(m) is shortened from 120 days to 90 days. Comment: If a defendant is not served within that timeframe, the Court must dismiss the action without prejudice as to that defendant. However, for good cause shown, the plaintiff can obtain an extension of time for service from the Court “for an appropriate period.” This amendment will not have a significant impact, although it is in line with other changes intended to quicken the pace of civil litigation.
Rules 16 and 26 – Scheduling/Disclosures
The time for holding the initial case management conference under Rule 16(b) has been shortened by 30 days, and new topics for the Rule 26(f) and Rule 16 conferences have been added. Comment: The scheduling order operates as a roadmap for the litigation and also sets in motion numerous other deadlines. The date for the Rule 26(f) conference is based upon the date for a scheduling conference or issuance of a scheduling order under Rule 16 (conference under Rule 26(f) must occur 21 days prior to Rule 16 scheduling conference or date for issuance of scheduling order). In turn, the Rule 26(f) conference triggers the obligation to make initial disclosures under Rule 26(a)(1)(C). Equally significant, until the Rule 26(f) conference occurs, discovery cannot commence. See Rule 26(d)(1). The net effect of the changes is to potentially move up all of these key events by thirty days and expedite the handling of civil cases.
Rule 26 – Scope of Discovery
The scope of discovery in Rule 26(b)(1) has been amended, and the need for proportional discovery tailored to the reasonable needs of the case has been highlighted. Comment: The new language requires that discovery be:
[P]roportional 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.
Expect this language to be cited in numerous future discovery disputes in which a party resisting discovery argues that the requests at issue are overreaching.
Rule 34 – Production of Documents
Objections to requests for production under Rule 34 must now be stated with specificity and disclose whether responsive materials are being withheld based upon the objection. If the responding party will make copies of documents available in lieu of an inspection, the response must state when such a production will take place. Comment: The amendments make responses to Rule 34 requests more useful, by requiring a responding party to state whether documents are being withheld based upon a specific objection, and conforms to the modern practice of producing copies of requested documents after the date of the written response rather than allowing an inspection of the materials.
Rule 37 – Preservation of Electronically Stored Information
Rule 37(e) has been rewritten to address the preservation and loss of electronically stored information. Comment: The prior version of Rule 37(e) barred the imposition of sanctions against a party for failing to produce electronically stored information lost as a result of the routine, good faith operation of a computer system, absent “exceptional circumstances.” The new version provides for a graduated system of sanctions when a party fails to take reasonable steps to preserve ESI that should have been preserved “in the anticipation or conduct of litigation.” The changes increase the pressure on companies to preserve ESI and on counsel to timely advise clients of the need to do so.
Rule 1 – Purpose of Rules
Rule 1 has been amended to state that parties as well as courts have an obligation to secure the just, speedy, and inexpensive determination of every action. Comment: The common theme of the amendments is to speed up the pace of litigation by shortening deadlines and insisting on the proportional use of discovery. As noted in the Judicial Council Committee notes accompanying this amendment, the parties and their counsel share this responsibility by engaging in the “proportional use of procedure.” This is similar to the language in the amendment to Rule 26 requiring that discovery be proportional. However, the impact of this amendment by itself will be limited. As stated in the Committee Notes, the amendment does not create a new or independent source for sanctions and it does not abridge the scope of the other rules.