NEW FEDERAL RULES OF CIVIL PROCEDURE
IN-HOUSE COUNSEL CONSIDERATIONS
October 30, 2015
IA ACC 2nd Annual
Corp. Counsel Forum
Timothy J. Hill
Laura M. Hyer
Copyright © 2015 Bradley & Riley PC - All rights reserved.
Introduction to
2015 Amendments
• Effective Date: December 1, 2015
• State Rule Amendments?
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Overview of Rule Amendments
1.
Discovery Amendments
2.
Early Judicial Case Management
3.
Duty to Cooperate
4.
Failure to Preserve Electronically Stored
Information (“ESI”)
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Discovery Amendments
1. Scope of Discovery: Fed. R. Civ. P. 26(b)(1)
2. Protective Orders and Cost-Shifting: Rule 26(c)(1)
3. Early Requests for Production: Rules 26(d)(2) and
34(b)(2)(A)
4. Requests for Production—Specific Objections,
Production, Withholding: Rules 34 and 37(a)
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Discovery Amendments
Scope of Discovery: Fed. R. Civ. P. 26(b)(1)
• Proportionality (in)
• Discovery of Information in Aid of
Discovery (in)
• Subject-Matter Discovery (out)
• “Reasonably calculated to lead” (out)
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Scope of Discovery: Proportionality
Amended Rule 26(b)(1) Scope in General.
Unless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged 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.
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Scope of Discovery: Proportionality
• Proportionality is now a condition of discovery; requested
information must be “proportional to the needs of the case.”
•
Proportionality Factors:
 importance of issues at stake
 amount in controversy
 parties’ relative access to relevant information
 parties’ resources
 importance of discovery in resolving the issue
 burden/expense versus likely benefit
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Scope of Discovery: Deleted Key Language
• Deletes examples of discoverable matters (i.e., documents,
tangible things, persons with knowledge).
• Deletes “For good cause, the court may order discovery of any
matter relevant to the subject matter . . . .”
• Deletes “need not be admissible . . . if . . . reasonably
calculated to lead to the discovery of admissible evidence.”
 Replaces with “Information . . . need not be admissible .
. . to be discoverable.”
 Form objections should be altered to remove
“reasonably calculated” language.
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Protective Orders and Cost-Shifting:
Rule 26(c)(1)
• “[A party may move for a protective order] (B) specifying
terms, including time and place or the allocation of expenses,
for the disclosure or discovery”
• Amendment explicitly recognizes power of court to issue a
protective order that allocates the expenses of disclosure or
discovery.
• Advisory Committee Note indicates that cost-shifting should
remain an uncommon practice and that “a responding party
ordinarily bears the costs of responding.”
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Early Requests for Production
Rules 26(d)(2); 34(b)(2)(A)
• Relaxes discovery moratorium to permit service of requests
for production before the attorney conference.
• Allows a party to deliver Rule 34 requests to another party
more than 21 days after that party has been served.
• If served with an early request for production, the responding
party has 30 days after the Rule 26(f) attorney conference to
respond.
• Purpose: “facilitate focused discussion during the Rule 26(f)
conference”
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Requests for Production:
Specific Objections, Production, Withholding
Rules 34 and 37(a)
• Requires that objections to Rule 34 requests state the
“grounds for objecting” “with specificity.”
• Recognizes common practice of producing documents or ESI,
rather than simply permitting inspection; documents must be
timely produced, subject to a motion to compel.
• In cases where responding party produces documents subject
to an objection, the response must “state whether any
responsive materials are being withheld on the basis of that
objection.”
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Early and Active Judicial Case Management
• Scheduling Conference/Order [Rule 16]

Timing: shortens time for issuance of
scheduling order (90 days after service or 60 days
after appearance) unless good cause for extension

Contents of Scheduling Order
 Order regarding preservation of ESI
 Clawback agreements under Fed. R. Evid. 502
 Pre-Motion conferences with court
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Early and Active Judicial Case Management
• Time to Serve Complaint [Rule 4(m)]
– reduces presumptive time to serve process from
120 days to 90 days
• Purpose of both Amendments:
– reduce delay at onset of litigation
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Duty to Cooperate
Rule 1. Scope and Purpose
. . . . [These rules] should be construed, administered, and
employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and
proceeding.
• Recognizes shared responsibility for “cooperative and
proportional” discovery
• Does NOT create independent source of
sanctions
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Failure to Preserve ESI: Rule 37(e)
Conditions for Curative Measures or Sanctions
• Limited to ESI; does NOT include all “discoverable
information” as originally proposed.
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Failure to Preserve ESI: Rule 37(e)
Conditions for Curative Measures or Sanctions
• Sanctions for lost ESI only if:
1. ESI is lost or destroyed after the common law
duty to preserve arises;
2. Reasonable steps to preserve were not taken;
and
3. ESI “cannot be restored or replaced through
additional discovery.”
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Failure to Preserve ESI: Rule 37(e)
Curative Measures or Sanctions
• Uniform Standard:
– establishes a uniform standard for the imposition
of sanctions concerning the loss or destruction of
ESI
– most severe sanctions are limited to intentional
loss or destruction.
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Failure to Preserve ESI: Rule 37(e)
Curative Measures or Sanctions
• Curative Measures to Remedy Prejudice: If court finds
that party seeking ESI is “prejudiced” by loss or destruction,
court may order “measures no greater than necessary to cure
the prejudice.”
• Intentional Loss or Destruction: If court finds that
responding party “acted with the intent to deprive another
party of the information’s use in the litigation,” court may (but
need not) impose most severe sanctions of adverse inference
presumption/instruction, dismissal or default judgment.
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No More Forms
Abrogation of Rule 84
• Notice of a Lawsuit and Request to Waive
Service of Summons
• Waiver of the Service of Summons
• Both forms will now be appended to Rule 4.
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Withdrawn Proposals
Proposals to reduce presumptive limits on the:
• number of interrogatories (15)
• number of requests for admission (25)
• number (5) and duration (6 hours) of depositions
have been withdrawn due to “fierce resistance.”
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THANK YOU
Follow up questions can be directed to Timothy J. Hill
at thill@bradleyriley.com
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