Federal Bar Update: Significant rule changes coming Dec. 1

Significant changes to the Federal Rules of Civil Procedure take effect to civil cases filed on or after Dec. 1, or to cases already pending to the extent just and practicable. The Supreme Court of the United States approved these changes in April, and Congress has taken no action to stop them becoming effective. Changes were made to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37 and 55; Rule 84 and the Appendix of Forms are abrogated.

The full rule amendments are available from the undersigned or at http://www.uscourts.gov/rules-policies/pending-rules-amendments. Practitioners are advised that many online providers do not always get the updated rules posted immediately, so caution is necessary to make sure the correct version of an applicable rule is being used. The key amendments are outlined below.

Rule 1 – A modest but important change is made to this “Scope and Purpose” rule, as follows: “These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

The Committee Notes explain this amendment: “Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way. Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with – and indeed depends upon – cooperative and proportional use of procedure.”

The Notes add: “This amendment does not create a new or independent source of sanctions. Neither does it abridge the scope of any other of these rules.”

Rule 4(m) – The amendment changes former Rule 4(m)’s 120-day limit for service to 90 days. The Committee Notes explain, “The presumptive time for serving a defendant is reduced from 120 days to 90 days. 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.”

Rule 16 – Several changes to this pretrial scheduling rule were made, most notably:

• The court must issue the scheduling order within 90 days of service or 60 days after appearance (each time period shortened by 30 days from prior rule); and

• The order may “direct that before moving for an order relating to discovery, the movant must request a conference with the court.”

On this last item, the Notes provide, “Many judges who hold such conferences find them an efficient way to resolve most discovery disputes without the delay and burdens attending a formal motion, but the decision whether to require such conferences is left to the discretion of the judge in each case.”

Rule 26(b)(1) – A significant edit re-emphasizing proportionality in the the scope of discovery is contained within Rule 26(b)(1), as follows:

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. — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

The Committee Notes elaborate on this change, tracing history over the last 30-plus years and the inadvertent de-emphasis on proportionality by the 1993 amendments. The Notes provide: “The present amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections. Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations. Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.”

As for the deletion of the “good cause” motion provision, the Notes explain: “The amendment deletes the former provision authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action. The Committee has been informed that this language is rarely invoked. Proportional discovery relevant to any party’s claim or defense suffices, given a proper understanding of what is relevant to a claim or defense.”

Rule 26(d)(2) – The amendments allow earlier “delivery” of Rule 34 document/inspection request, as follows:

(d) Timing and Sequence of Discovery.

* * * * *

(2) Early Rule 34 Requests.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

Previously, Rule 34 requests could not be served until the parties’ Rule 26(f) conference or leave of court. This amendment allows them to be “delivered,” and then provides that the requests are not considered served until the Rule 26(f) conference. The Notes confirm that “Under Rule 34(b)(2)(A) the time to respond runs from service.”

Respectfully, this is an odd amendment. The Notes explain it, commenting, “This relaxation of the discovery moratorium is designed to facilitate focused discussion during the Rule 26(f) conference. Discussion at the conference may produce changes in the requests. The opportunity for advance scrutiny of requests delivered before the Rule 26(f) conference should not affect a decision whether to allow additional time to respond.”

In the undersigned’s opinion, delaying service of and thus responses to discovery simply delays the ultimate resolution or adjudication of the case. But this is the new rule, a slight modification grounded in idealistic visions of “delivered” document requests being meaningfully reviewed during, and then altered as a result of, 26(f) conferences.

Rule 34 – Rule 34(b)(2)(B) is amended as follows regarding inspection or production: “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.”

As for objections, Rule 34(b)(2)(C) has an important new addition: “An objection must state whether any responsive materials are being withheld on the basis of that objection.” This will likely keep counsel and the magistrate judges busy, at least in the near term, due to the common practice of lawyers providing objections without indication of anything being withheld.

The Notes are insightful on this issue, providing: “Rule 34(b)(2)(C) is amended to provide that an objection to a Rule 34 request must state whether anything is being withheld on the basis of the objection. This amendment should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections. The producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection. An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been ‘withheld.’”

Wise counsel will thus: (1) avoid making boilerplate objections when no document is actually being withheld, as it will result in needless follow-up by opposing counsel and deserved suspicion; and (2) be sure to give some indication that documents have, in fact, been withheld. For instance, if the request asks for 10 years of documents, a proper objection (at least in phraseology) would be: “Objection as to the overbroad time period requested; responsive records have been produced for the five-year period from _____ to ______; records prior to that period have been withheld pursuant to this overbreadth objection.”

Rule 37 – Rule 37(e) has significant amendments that allow the court to order various measures if “electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” The amendments to this Rule are very significant, and will be the subject of this next column in detail.

Annual Federal Civil Practice Seminar – The annual federal civil practice seminar for the Southern District of Indiana will be from 1:30 p.m. to 4:45 p.m. Friday, Dec. 18, in Indianapolis. Register at www.theindianalawyer.com.•

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• John Maley – [email protected] – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.