Changes to Federal Civil Practice in South Carolina, 0716 SCBJ, SC Lawyer, July 2016, #26

AuthorAndrew R. de Holl, J.

Changes to Federal Civil Practice in South Carolina

No. Vol. 28 Issue 1 Pg. 26

South Carolina BAR Journal

July, 2016

Andrew R. de Holl, J.

Last year, the Supreme Court amended many of the Federal Rules of Civil Procedure. However, recent filings in South Carolina's U.S. District Court suggest attorneys are overlooking those amendments, as well as corresponding amendments to the Local Civil Rules. Because the amendments are, in Chief Justice John Roberts' words, "a big deal,"1 this article summarizes them and highlights some of their effects on practice in the district court.

Lawyers' Duty to Cooperate

The federal rules begin by stating they should be interpreted and applied in ways that "secure the just, speedy, and inexpensive determination" of every case.[2] Although few doubted that Rule 1 applies to judges and lawyers, the rule now states so explicitly3 Chief Justice Roberts explains this change "highlights the point that lawyers— though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes."4

When you are dealing with recalcitrant opposing counsel, it might seem desirable to inform the judge, through a motion for sanctions, that your opponent is not fulfilling that duty. However, such a motion would fail—the Advisory Committee's Notes state that amended Rule 1 "does not create a new or independent source of sanctions."5 Instead, turn the other cheek.

Service of Process

Plaintiffs now have 90 days (down from 120 days) to serve the summons and complaint.6 As with prior practice, that deadline can be extended for an appropriate period upon a showing of good cause—"for example, when a request to waive service fails, a defendant is difficult to serve, or a marshal is to make service in an in forma pauperis action."7Additionally, the exception to that deadline now includes service of Rule 71.1(d) condemnation notices; previously, only out-of-country service was exempt.8

If you assert a claim against someone but do not timely serve the pleading on her, Local Civil Rule 4.01 requires you to file a report explaining why you have not done so. That report is intended to help the judge decide whether there is good cause to extend the service deadline. Accordingly, Local Rule 4.01 has been amended to reduce the time to file that report from 120 days to 90.9

Relation Back of Amended Pleadings

The shorter service deadline narrows the window for some amended pleadings to relate back to the original pleading's date. When a pleading mistakenly names the wrong defendant, the amendment correcting that mistake will not relate back unless, among other things, the intended defendant receives notice of the action "within the period provided by Rule 4(m)."10 Thus, "[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."11

Judicial Case Management

Several amendments encourage judges to "take on a stewardship role, managing their cases from the outset rather than allowing parties alone to dictate the scope of discovery and the pace of litigation."12

First, Rule 16(b)(1) no longer explicitly allows scheduling conferences to be conducted "by telephone, mail, or other means."13Although the amended rule does not mandate any specific method for holding the conference, the Advisory Committee suggests judges engage in "direct simultaneous communication" with lawyers and pro se parties "in person, by telephone, or by more sophisticated electronic means."[14] However, before you rush off to set up a scheduling conference via Skype, note that the Local Civil Rules still state a preference for basing scheduling orders on the Federal Rule 26(f) report and Local Civil Rule 26.03 disclosures in lieu of a conference,15 and those rules still exempt several categories of cases from needing scheduling orders.16

Second, the amendments encourage early judicial involvement by reducing the presumptive deadline for issuing a scheduling order to the earlier of 90 days (down from 120 days) after any defendant has been served or 60 days (down from 90 days) after any defendant has appeared.17 As with the prior version of the rule, the court still ultimately must issue the order as soon as practicable, and it may still extend the deadline for good cause.18

Third, scheduling orders can require parties to seek an informal conference with the judge before moving for a discovery order. "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[.]"19 Perhaps that is so because, as the Chief Justice put it, "a well-timed scowl from a trial judge can go a long way in moving things along crisply"20

Finally, the "proportionality" standard for discovery (discussed below) contemplates "continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management."21

One amendment, however, aims for less court involvement. Rule 26(d) allows discovery to take place in any sequence. Previously, only a judge could set a particular sequence for a case.22 Now, under Rule 26(d)(3), judges may still issue such orders, but parties may instead stipulate to set discovery sequences without getting the court's approval.

Proportionality in Discovery

The text of Rule 26(b)(1), which defines the scope of discoverable information, has been overhauled. It now defines discoverable information as that which is (1) non-privileged, (2) relevant to a claim or defense, and (3) "proportional to the needs of the case"—a requirement informed by six factors: • 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.23

Although this amendment looks like a paradigm shift, it changes the scope of discovery only slightly. All but one of the proportionality factors formerly appeared in Rule 26(b)(2)(C)(in) as criteria for limiting unduly burdensome discovery. Because former Rule 26(b)(1) stated that "[a]ll discovery [was] subject to" those criteria, proportionality already defined the outer limits of discovery.24 The amendment simply puts proportionality directly in Rule 26(b)(l)'s definition, which is where the concept was first introduced in 1983.25

The one substantive addition is the factor of the parties' relative access to relevant information. This addresses "information asymmetry"—the common phenomenon where, for example, a corporate defendant has far more discoverable information than an individual plaintiff—and recognizes it is not unfair for discovery to be more burdensome on the party with more information.26

Proportionality permeates all discovery, but the amendments stress its importance in several specific areas. For example, parties may take depositions early, take more than 10 depositions, or issue more than 25 interrogatories only when the judge finds such discovery "consistent with" the proportionality factors.27Additionally, judges may issue protective orders that shift discovery expenses.28 Applying the proportionality factors will likely help judges discern whether they should issue such an order.

ESI Preservation

Three amendments emphasize the need to preserve electronically stored information (ESI), even before litigation begins.29 First, discovery plans must address any issues the parties have about disclosure...

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