The Federal Rules of Civil Procedure Have Changed: Are You Prepared? | Practical Law

The Federal Rules of Civil Procedure Have Changed: Are You Prepared? | Practical Law

Significant amendments to the Federal Rules of Civil Procedure (FRCP) became effective on December 1, 2015. Generally, the amendments aim to improve case management and discovery in federal litigation in response to the increasing demands of electronically stored information. Although many of the amendments emphasize familiar themes (like cooperation and proportionality in discovery), counsel and the judiciary must work together to achieve their full potential.

The Federal Rules of Civil Procedure Have Changed: Are You Prepared?

Practical Law Legal Update w-000-7531 (Approx. 5 pages)

The Federal Rules of Civil Procedure Have Changed: Are You Prepared?

by Practical Law Litigation
Law stated as of 01 Dec 2015 • USA (National/Federal)
Significant amendments to the Federal Rules of Civil Procedure (FRCP) became effective on December 1, 2015. Generally, the amendments aim to improve case management and discovery in federal litigation in response to the increasing demands of electronically stored information. Although many of the amendments emphasize familiar themes (like cooperation and proportionality in discovery), counsel and the judiciary must work together to achieve their full potential.
To help counsel comply with (and take advantage of) the numerous changes to the FRCP, Practical Law's editorial team has revised all affected maintained resources to reflect the amendments.
Recent amendments to the Federal Rules of Civil Procedure, which became effective on December 1, 2015, offer parties some tools to fight back against the burdens of discovery in complex civil litigation by, among other things:
  • Making discovery more effective and proportional by redefining the scope of discovery and institutionalizing best practices in discovery requests and responses.
  • Encouraging reasonable conduct on preserving electronically stored information (ESI) by establishing a uniform sanctions regime that looks to limit costly over-preservation by US companies.
  • Promoting early and active case management through increased judicial engagement and requiring the parties and their counsel to work cooperatively to achieve a just, speedy, and inexpensive resolution of every case.
Practical Law offers numerous resources designed to help counsel navigate the costs and burdens associated with discovery in complex civil litigation. To help counsel comply with (and take advantage of) the numerous changes to the FRCP, all affected maintained resources were revised on November 30 to reflect the recent amendments.

Improved Discovery Practices

Producing parties often have large amounts of ESI subject to disclosure, and typically bear all costs associated with production. Requesting parties therefore often lack sufficient information to design narrow and targeted discovery requests, and are sometimes incentivized to serve unduly burdensome discovery requests, with little downside or risks to themselves. In an attempt to limit unnecessary discovery and unduly burdensome discovery requests, the amendments:
  • Eliminate the longstanding provision that information "reasonably calculated to lead to the discovery of admissible evidence" may be discovered.
  • Permit discovery only if the requests are proportional to the needs of the case, based on:
    • 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.
  • Limit all discovery to information relevant to a party's claims or defenses, rather than the subject matter involved in the action.
(FRCP 26(b)(1).)
Active judicial case management, effective motion practice, and better cooperation among the parties can help ensure that these new limits are properly applied.
In addition, the amendments require a producing party's responses to document requests to:
  • State whether the party is withholding responsive documents.
  • Raise any objections with specificity, rather than rely on broad, boilerplate objections that fail to notify the requesting party and the court of the problems with its request.
  • State whether the party will produce copies or permit inspection, and specify a reasonable timeframe for production.
(FRCP 34(b)(2), 37(a)(3)(B)(iv).) Together, these amendments aim to expedite the identification and production of relevant documents.
However, counsel drafting objections and responses under the new rules can take comfort that:
  • Documents not identified through agreed search parameters do not need to be specified.
  • A "nonresponsive" log is not required.
(2015 Advisory Committee Notes to FRCP 34(B)(2)(C).)

Reasonable ESI Preservation

Companies often over-preserve vast amounts of data out of fear that some ESI might be lost, and that their actions may in hindsight be deemed negligent or subject them to drastic spoliation sanctions. This phenomenon is caused, in part, by the varying spoliation standards adopted by courts in different jurisdictions.
To address concerns regarding over-preservation, the amendments require a party seeking any remedy for lost ESI to demonstrate that:
  • A duty to preserve the ESI existed before litigation was reasonably anticipated.
  • The information subject to preservation is electronic and was lost or destroyed.
  • The information cannot be restored or replaced through additional discovery.
  • The producing party failed to use reasonable preservation efforts.
(FRCP 37(e).)
Once these elements are satisfied, a party may seek:
  • Relief that is "no greater than necessary to cure" any prejudice suffered, where there was no intent to deprive a party of the lost ESI (FRCP 37(e)(1)).
  • Drastic sanctions like adverse inferences, where a party destroyed ESI with the intent of depriving the adversary of the information (FRCP 37(e)(2)).
By clarifying the standards governing the preservation and loss of ESI, the amendments may make it easier for large data producers to decide to discard certain kinds of ESI without fear of being sanctioned. However, the amendments still fail to offer any guidelines concerning the scope or duration of ESI preservation. As a result, parties may continue to over-preserve vast amounts of data out of an abundance of caution.

Early and Active Case Management

Efficient and cost-effective e-discovery depends on both a cooperative relationship with opposing counsel and early and active management of e-discovery issues. To better serve these goals, the recent FRCP amendments:
  • Shorten the timeframes for service and initial scheduling conferences.
  • Direct attorneys to work with the court to achieve the "just, speedy, and inexpensive determination of every action."
  • Permit parties to serve document requests before the initial scheduling conference.
  • Encourage courts to:
    • hold pre-trial conferences either in-person or by telephone, rather than through correspondence or briefing; and
    • direct parties to request a pre-motion conference before moving for a discovery order.
  • Require parties to:
    • consider seeking an order under FRE 502(d) to protect against waiver of the attorney-client privilege or work product protection; and
    • address ESI preservation in the discovery plan.
(FRCP 1, 4(m), 16(b), 26(d)(2), 26(f).)
For more on the amendments and their potential impact on legal practice, see: