Primary Changes To The Federal
Rules of Civil Procedure
Effective December 1, 2015
Presented By
Shuman, McCuskey, & Slicer, PLLC
Rule 1 – Scope and Purpose
• This rule has added language to ensure the
parties’ knowledge that they and the Court are to
employ these rules to secure the just, speedy, and
inexpensive determination of every action and
proceeding.
Rule 4. Summons
• This rule has adopted new forms for a request
of waiver and for waiver of service by the parties
which are appended to the rule itself rather than
those forms formerly found in the appendix of
these rules.
Rule 4. Summons
Continued
• The time limit for service on a defendant has been reduced
from 120 days to 90 days, and if a defendant is not served within
90 days after the complaint is filed, the Court — on motion or on
its own after notice to the plaintiff — must dismiss the action
without prejudice against that defendant or order that service be
made within a specified time.
• This change, together with the shortened times for issuing a
scheduling order set by amended Rule 16(b)(2), will reduce delay
at the beginning of litigation.
• Shortening the time to serve under Rule 4(m) means that the
time of the notice required by Rule 15(c)(1)(C) for relation back
is also shortened.
Rule 16. Pretrial Conferences;
Scheduling; Management
• This rule has removed the ability of Courts to consult with the parties outside of an
in-person scheduling conference before the issuance of a scheduling order. Parties
previously could be consulted by telephone, mail, or other means.
• The judge also must issue the scheduling order as soon as practicable, but unless the
judge finds good cause for delay, the judge must issue it within the earlier of 90 days
after any defendant has been served with the complaint or 60 days after any defendant
has appeared. This has been reduced from the lesser of 120 and 90 days, and is another
30 day reduction so as to be consistent with Rule 4 as shown before.
• This Rule has also added that scheduling orders may provide for the preservation of
electronically stored information, which is a new theme the rules are beginning to
highlight due to its prevalence and the problems it has posed to parties and Courts.
• Also, before moving for an order relating to discovery, the movant must request a
conference with the Court first;
Rule 26 - Discovery
• The scope of discovery has taken on a new “proportionality standard” instead of the
“reasonably calculated to lead to discovery of admissible evidence standard” in the past.
• Now Parties may “obtain discovery regarding any non-privileged matter that is
relevant to any party’s claim or defense and proportional 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. Information within this scope of
discovery need not be admissible in evidence to be discoverable.”
• This is meant to stop over-inclusive production and requests in order to protect
clients from spending too much on incredibly voluminous discovery. Parties must be
conscious of the change, and use the factors of this rule to restrain overbroad discovery
requests. Parties should approach issues with specificity and discuss/negotiate with the
other side to agree on a scope, perhaps in a joint letter, or maybe a teleconference with
the Court instead of briefing it.
Rule 26 Continued –
Protective Orders
• Protective orders now can include an
allocation of expenses for discovery; for
example: who will pay for production of
documents. Courts already have this power, but
this codifies that ability. This can be utilized in
the proportionality argument above by saying,
“my requests are not overbroad because I am
paying part of the cost of this discovery.”
Rule 26(d) Timing and Sequence of
Discovery.
• Parties now may make “Early Rule 34 Requests” which are
requests for production of documents. These requests can only be
made 21 days after the summons and complaint are served on that
party. The request is considered to have been served at the first
Rule 26(f) conference. Once served, that party has 30 days to
answer the request.
• Also, discovery plans must now state the parties’ views and
proposals on preservation of electronically stored information,
along with the disclosure and discovery of that information.
Rule 30. Depositions by Oral
Examination
• Leave to take an oral deposition now must be
granted to the extent consistent with Rule
26(b)(1) and (2), thereby incorporating the new
proportionality standard of discovery.
• Proportionality also applies to the duration of
oral depositions, where the Court must allow
additional time consistent with Rule 26(b)(1) and
(2) if needed to fairly examine the deponent.
Rule 31. Depositions by Written
Questions
• Depositions by written questions must also be
granted by the Court to the extent the deposition
is consistent with the proportionality standard of
Rule 26(b)(1).
Rule 33. Interrogatories to Parties
• Leave to serve additional interrogatories may
be granted to the extent consistent with the
proportionality standard of Rule 26(b)(1) and (2).
Rule 34. Producing Documents, Electronically Stored
Information, and Tangible Things, or Entering onto Land, for
Inspection and Other Purposes
• This rule has been changed to incorporate the times for delivery and
responses to Early Rule 34 Requests under Rule 26(d)(2). The party to whom
the request is directed must respond in writing within 30 days after being
served or — if the request was delivered under Rule 26(d)(2) (early Rule 34
Requests) — within 30 days after the parties’ first Rule 26(f) conference.
• The responding party may state that it will produce copies of documents or
of electronically stored information instead of permitting inspection. The
production must then be completed no later than the time for inspection
specified in the request or another reasonable time specified in the response.
• Also, objections to the production of documents now must state whether
any responsive materials are being withheld on the basis of that objection.
Rule 37. Failure to Make Disclosures or
to Cooperate in Discovery; Sanctions
• Rule 37 now codifies the ability of a party to
compel a discovery response when a party fails
to produce documents which were requested
under Rule 34 (Requests for Production).
*New Rule - 37(e) – Failure to Preserve
Electronically Stored Information
• This important new rule provides Courts the ability to impose unfavorable
presumptions, unfavorable jury instructions, dismissal of the action, or default
judgment against a party who fails to preserve electronic information which
should have been preserved in the anticipation or conduct of litigation.
• If electronically stored information is lost because a party failed to take
reasonable steps to preserve it, and it cannot be restored or replaced or
replaced through additional discovery, the Court may, if it finds prejudice done
to the requesting party, order measures to cure the prejudice;
• If the Court finds that the party acted with the intent to deprive another
party of the information’s use in the litigation, the Court may presume that the
lost information was unfavorable to the party; it may instruct the jury that they
may or must presume the information was unfavorable to the party; or the
Court may dismiss the action or enter a default judgment.
Rule 55. Default; Default Judgment
• This Rule now allows for the setting aside of
final default judgments under Rule 60(b).
Abrogation
• Rule 84 – Forms – Abrogated
• Appendix of Forms – Abrogated
• Rule 84 and the Appendix of Forms are no
longer deemed necessary and have been
abrogated. The forms the Rule and the Appendix
provided may be found at various sites online.