The 2015 Amendments to the Federal Rules of Civil Procedure
| Jurisdiction | United States,Federal |
| Citation | Vol. 45 No. 2 Pg. 23 |
| Pages | 23 |
| Publication year | 2016 |
Articles
The Civil Litigator
The 2015 Amendments to the Federal Rules of Civil Procedure
By William C. Groh, III.
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
Coordinating Editor
Timothy Reynolds, Boulder, of Bryan Cave HRO—(303) 417-8510, timothy.reynolds@bryancave.com
About the Author
William C. Groh, III is an intellectual property and business litigation attorney at Thomas P. Howard, LLC—(303) 665-9845, wcgroh@thowardlaw.com.
The 2015 changes to the Federal Rules of Civil Procedure are now in effect. They apply not only to newly filed cases but also currently pending cases to the extent "just and practicable."
New and important changes to the Federal Rules of Civil Procedure (Federal Rules) took effect on December 1, 2015 and apply to all newly filed cases as well as currently pending cases "insofar as just and practicable."[1] The changes affect Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84. They deal primarily with the scope of discovery, case management, and preservation of electronically stored information (ESI). The amendments generally reflect an effort to refocus litigants' ongoing obligation to conduct discovery efficiently and in appropriate proportion to the needs of the case at issue. The redline version of the 2015 amendments, with committee notes, is available for download at www.uscourts.gov/file/18481/download.
Rule 1
Rule 1 previously was a rule of construction that required the courts to administer the Federal Rules to ensure "the just, speedy, and inexpensive determination" of civil actions.[2] The wording placed responsibility on the courts. New Rule 1 expressly requires the courts and the parties to construe, administer, and employ the Federal Rules to achieve these goals.[3]
Rule 4
Rule 4 has changed to provide a mandatory form to be used for requesting waiver of service. Prior Rule 4 contained an example waiver form but permitted other formats as long as they followed the rule's substantive requirements. The waiver of service form provided with New Rule 4 is now mandatory. The Rule 4 form can be downloaded at www.cod.uscourts.gov/Portals/O/Documents /Forms/CivilForms/notice-n-waiver-of-serv-summons.pdf.
Rule 16
The amendments to Rule 16 are designed to encourage speedier scheduling and greater court involvement in ensuring the preservation of ESI. New Rule 16(b)(1)(B) does away with the provision allowing communication by "telephone, mail, or other means" to substitute for a Rule 16(b) scheduling conference. The parties and the court must engage in direct simultaneous communication, either in person, by telephone, or by other means.[4]
New Rule 16 shortens the deadline for the court to issue its scheduling order. While the deadline was 120 days under Prior Rule 16, New Rule 16 requires the court to issue the court scheduling order within 90 days after service of the complaint or 60 days after the appearance of any defendant. The court may extend this deadline upon a finding of good cause.
Prior Rule 16(b)(3)(B) included a list of items for consideration in entering the court scheduling order. New Rule 16(b)(3)(B) adds to this list, providing that the court may also include protocols for preservation of ESI. This change is apropos considering the changes to Rule 37 governing sanctions for failure to preserve ESI, discussed below. The new rule also permits the court to add agreed protocols for dealing with the disclosure of privileged information under FRE 502, and to require the parties to request a conference before the court before filing discovery motions. In light of these new items, Rule 26(f)(3) has also been changed to require the parties to address these issues at their Rule 26(f) conference.
Rule 26
The changes to Rule 26(b)(1), which governs the scope of discovery, have generated considerable controversy and debate. The amended rule introduces two main changes. First, it does away with the "reasonably calculated to lead to the discovery of admissible evidence" language while clarifying the definition of "relevant information" in relation to the proper scope of discovery.[5] Second, the amended rule emphasizes that discovery must be "proportional to the needs of the case," introducing a six-factor test by which the courts must determine proportionality.[6]
Redefining "Relevance"
The "relevance" standard under New Rule 26(b)(1) is narrower and more streamlined than in the prior rule. While Prior Rule 26(b)(1) allowed for discovery relevant to any claim or defense,[7] it also allowed for discovery of "any matter relevant to the subject matter involved in the action" upon a showing of good cause. It provided that "relevant" information need not be admissible "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."[8] New Rule 26(b)(1) is more restrictive. It does away with the "relevant to the subject matter" and "reasonably calculated" standards. The new rule requires that discovery be "relevant to any party's claim or defense." Discovery fitting this relevance criterion "need not be admissible in evidence to be discoverable."[9]
The elimination of the "reasonably calculated to lead to the discovery of admissible evidence" language is technically less substantive than it may seem. The Committee Notes point out that the wording of Prior Rule 26(b)(1) has caused practitioners to cite the "reasonably calculated" language as the general standard for the scope of discovery instead of the true "relevance" standard.[10] The Committee Notes emphasize that the appropriate scope is "relevance" to claims and defenses, and New Rule 26(b)(1) removes the "reasonably calculated" language to prevent further confusion.[11]
New Rule 26(b)(1) also no longer permits discovery that is merely "relevant to the subject matter involved in the action," even on a showing of good cause.[12] Discovery under the new rule must be "relevant to any party's claims or defense," but what does that mean in practice? The Committee Notes cite illustrative examples including "other incidents of the same type, or involving the same product"; "information about organizational arrangements or filing systems"; and "information that could be used to impeach a likely witness."[13] The Federal Rules Advisory Committee first introduced these examples in the Committee Notes to the 2000 amendments to Rule 26. The Committee Notes to the 2000 amendment acknowledge that a bright-line rule distinguishing "relevance to claims and defenses" from "relevance to subject matter" is not practical, given the case-specific nature of the criteria.[14]
New Rule 26(b)(1) also no longer expressly describes the scope of discovery as 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."[15] This change is cosmetic. As the Advisory Committee explains, "[discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples."[16]
The above changes refocus the scope of discovery on relevance to claims and defenses. These changes make it more likely that courts will sustain objections to discovery of subject matter that is not in itself "relevant" to the parties' claims and defenses as expressed in the pleadings.
The Six-Factor "Proportionality" Test
Possibly the flagship feature of the 2015 amendments to Rule 26, New Rule 26(b)(1) requires that, in addition to being relevant, discovery be "proportional to the needs of the case." The New Rule also sets out six factors that guide the determination of "proportionality":
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.
Many public commentators have expressed both optimism and concern about the "new" requirements that the proportionality test would impose on litigants and the courts. Opponents argued that a formal proportionality test would make discovery more difficult by imposing a new layer of motions practice over "proportionality" in every case. As one commentator wrote:
I strongly oppose the amendment to Rule 26(b) injecting a proportionality test into the Rules. Under the current Rules, many of my adversaries routinely include boilerplate objections in to their responses to virtually every discovery request that I send. If this proposed change is adopted, I am confident that those boilerplate objections will be joined by an objection that the discovery requests are not proportional to the needs of the case. This, in turn, will generate unnecessary litigation over proportionality every time that a new discovery request is served.[17]
Other commentators expressed optimism about the changes. As one supporter wrote:
This change would provide a significant improvement compared to the overbroad scope of discovery defined by current Rule 26(b)(1) by reducing the costs and burdens in discovery practice. In addition, I support moving the proportionality language presently found in Rule 26(b)(2)(C)(iii) to 26(b)(1). This modification would remind parties that the principle...
To continue reading
Request your trial