On December 1, 2015, substantial changes to the Federal Rules of Civil Procedure (FRCP or Rules) will take effect. The Rule changes affect many aspects of federal court practice, most significantly with respect to the scope of discovery and early case management. While the concepts in the amended Rules are not entirely new and in some instances merely codify emerging case law, the intent of the amendments is to encourage more aggressive early case assessment and efficient management of cases during the life of the litigation. These changes provide a real opportunity to reduce substantially the cost and duration of federal court litigation.
The Rule changes should cause trial counsel to focus on three main issues: cooperation, proportionality and early case assessment and management. In addition, the Rule changes provide important clarification regarding appropriate sanctions for electronic data losses.
Goodwin Procter LLP will host a CLE-eligible webinar on Thursday, November 19, 2015 from noon to 12:45 p.m. EST to discuss how best to use these rule changes to reduce litigation costs and drive faster, better results.
Efficiency Through Preparation and Cooperation
The word cooperation was not added to the text of the Rules due to concerns that it would be interpreted to mandate compromise. Nevertheless, the concept of cooperation was heavily emphasized through the Rules drafting process. This cooperative notion is incorporated into the amendment to Rule 1, which emphasizes that the parties, their counsel and the courts are responsible for the “just, speedy, and inexpensive determination of every action and proceeding.
Early discovery is also intended to foster cooperation. A party may elect to deliver discovery requests in advance of the initial Rule 26(F) Conference, as permitted by amended Rule 26(d)(2). The Committee Notes emphasize that the allowance of early Rule 34 document requests are “designed to facilitate focused discussion during the Rule 26(f) Conference.”
The amended Rules also introduce more transparency in responding to discovery requests. Rule 34 now requires that objections to discovery requests state whether any responsive materials are being withheld on the basis of the objection. The prior Rule and general practice often left parties guessing whether otherwise responsive information was being withheld.
In general, the amended Rules require parties and their counsel to confront questions about discovery cost containment at the outset of litigation and to work together early on to prepare their case for discovery. They must identify data sources and custodians, implement preservation strategy, and analyze the burden of preservation and production.
The concept of proportionality existed well before the proposed amendments, but the Rules as amended place renewed emphasis on proportionality. Much of the current language of Rule 26(b)(2)(C)(iii) related to proportionality was simply moved up to amended Rule 26(b)(1). The amended language now defines the allowable scope of discovery as that which is relevant and “proportional to the needs of the case.” The six factors for determining proportionality are laid out in the text of amended Rule. The remaining text of Rule 26(b)(2)(C)(iii) cross-references Rule 26(b)(1) as defining the permissible scope of discovery.
Rule 26(b)(1) no longer contains the language “reasonably calculated to lead to the discovery of admissible evidence” which is often used to argue that the scope of discovery should be broad. That language will be replaced with “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.”
Early Case Assessment and Management
The amendments to Rules 16 and 26 support early case management efforts already embraced by many courts. Discussions of proportionality, case management, and preservation and privilege protection under Federal Rule of Evidence 502 are all topics to be included in the Rule 26(f) discovery plan and Rule 16(b)(3) scheduling order. The court and the parties are encouraged to engage in direct communication by meeting in-person or through other real-time methods of communication.
Addressing these issues in conjunction with the Court, if necessary, at the beginning of the case can negate unnecessarily costly preservation and document review thereby avoiding expensive disputes down the road. To best serve their clients, trial counsel should be engaging in, and encouraging their clients to engage in, more in-depth and thorough early case assessments so as to be in a position at the initial conferences and thereafter to advance the most favorable case management arguments, including arguments to limit discovery, to accelerate resolution of case dispositive issues or other issues that could significantly affect the scope and trajectory of the case.
Sanctions in Connection with Spoliation
Rule 37(e) now provides for potential sanctions for the loss of electronically stored information only when: (a) there was a duty to preserve, (b) the party failed to take reasonable steps to preserve, and (c) the lost information cannot be restored or replaced through additional discovery. Upon finding prejudice to another party from the loss of information, the court may order measures no greater than necessary to cure the prejudice. If the court finds that a party acted with intent to deprive another party of the information, the court may presume the lost information was unfavorable to the party, instruct the jury that it may presume the information was unfavorable to the party, or dismiss the action or enter a default judgment. This Rule amendment reins in some of the more extreme approaches taken by certain courts and ratifies the more measured approach taken by other courts.
Whether or not the amended Rules have the intended effect will depend largely upon parties, counsel and the courts incorporating these changes into practice. One can expect the interpretations of the amended rules to result in a new body of case law.
Goodwin Procter LLP’s Webinar: 2015 Amendments to the Federal Rules of Civil Procedure: What You Need to Know has already taken place.
This webcast provides non-transitional CLE credit.
Goodwin Procter is an accredited provider in New York and California. For attorneys admitted in other jurisdictions, refer to your local CLE rules to determine whether you may apply these credits toward your requirement.
Mark E. TullyPartner
Michelle Treadwell BriggsPartner