Numerous amendments to the Federal Rules of Civil Procedure will come into effect on December 1, 2015. The amendments are to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55 and 84. These amendments will have a variety of effects on the preparation of cases and the handling of potential claims. The following is a summary of the more significant changes.
Rule 4: The new rule reduces the time for service of process after the filing of a complaint from 120 days to 90 days. It also appends a new waiver of service form to the rule.
Rule 16: The changes to Rule 16 relate to scheduling and discovery orders, and include:
- A judge may only issue a scheduling order after receiving the Rule 26(f) report of the parties or after consulting with the parties at a scheduling conference, but not after conferring with the parties by mail or telephone only.
- Scheduling orders must be issued within 90 (formerly 120) days after service on any defendant, or after 60 (was 90) days after the appearance of any defendant.
- In addition to the disclosure and discovery of electronic evidence, a scheduling order may now provide
for the preservation of electronic evidence.
- Before moving for an order relating to discovery, the moving party must first request a conference with the court.
Rule 26: The amendments include major changes to this rule, including:
- Significantly, the Rule 26(b) scope of discovery has been redefined:
- Discovery must now be relevant to any parties’ claim or defense, as opposed to being reasonably calculated to lead to the discovery of admissible evidence.
- A proportionality requirement has been added, saying that discovery may now only be obtained if it is nonprivileged, relevant, “and proportional to the needs of the case.”
- Rule 34 requests may now be delivered to another party after 21 days from service of that party, and are considered served at the time of first Rule 26(f) conference (the responding party has 30 days from the conference in which to serve responses).
- A discovery plan must now include the parties’ views about preservation of electronically stored information.
Rule 34: The amendment requires that a party may produce copies of documents or electronically stored information in lieu of permitting an inspection. It also requires that any objection to a request must state whether, on the basis of its objection, the party is withholding any materials that are responsive to the request.
Rule 37: The amendments include a significant addition to this rule regarding the failure to preserve electronically
stored information. Now, where electronically stored information that should have been preserved is lost and cannot be recovered, the court may do one of two things:
- Upon a finding of prejudice to another party, order measures to cure that prejudice, or
- Upon a finding that the spoliating party acted with the intent to deprive another party of the information, presume the information was unfavorable to the spoliating party; instruct the jury that it may or must make the same presumption; or dismiss the action or enter a default judgment.
What effect the amendments to Rule 26 will have on the discovery process remains to be seen. Certainly the requirement that discovery must now be relevant to any party’s claim or defense, as opposed to merely being reasonably calculated to lead to the discovery of admissible evidence, appears to be an attempt to limit fishing expeditions by requiring a more narrow focus. Whether this attempt is realized in practice, however, will only be determined after the courts have offered their interpretations on what, if any, practical distinction there is between the old language and the new.
The re-definition of the scope of discovery under Rule 26(b)(1) will likely have a limited impact on the discovery process. This language was already present, preamendment, in Rule 26(b)(2)(C)(iii), which permitted the court to order limits on discovery based on the factors now set out in Rule 26(b)(1). At the least, however, moving this language to a more prominent position in the rule should aid defense counsel in arguing to limit overly broad and expensive discovery requests from the plaintiff.
The amendments have a clear focus on the preservation and discovery of electronic information. The duty to reserve this evidence arises as soon as litigation is reasonably anticipated, and Rule 37 vests courts with a large degree of discretion in how to cure the loss of information that has been accidentally or intentionally spoliated. Because of this, it is extremely important for every organization to have measures in place to quickly and accurately identify those events that could lead to litigation, and to preserve all electronic information related to those events.
Please contact one of the members of the Coverage & Casualty Group to discuss these changes further.