Prologue 2015 - FRCP amendments, prominent trends and practical considerations

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 17-34

HANDLING FEDERAL DISCOVERY

PROLOGUE:

2015 FRCP AMENDMENTS, PROMINENT TRENDS AND

PRACTICAL CONSIDERATIONS

On April 29, 2015, the Committee on Rules of Practice and Procedure to the Judicial Conference proposed

some of the most significant changes to the Federal Rules of Civil Procedure (“FRCP”) seen in the last 20-plus

years. See Berman, Reinventing Discovery under the New Federal Rules, LITIGATION, Vol. 42, No. 3, Spring

2016, (the amendments “change discovery in a big way, largely by narrowing its scope”). On December 1, 2015,

these rules came into effect and since then, the case law interpreting the 2015 Amendments has shaped and

continues to influence new trends in the practice of legal discovery.

The authors of this text, cognizant of the importance of these changes, have dedicated an opening prologue

to analyzing specifically how these new rules have impacted Federal Discovery and how practitioners can best

adapt and handle the changing landscape.

OVERVIEW OF 2015 AMENDMENTS

What are the exact changes?

I. RULE 1: SCOPE AND PURPOSE

A. OLD – The old rule addressed what the court should do, but made no mention of any obligations

parties held.

B. NEW – The new rule explicitly mentions parties, in addition to the court:

1. Both court and parties should construe, administer and employ the rules to secure the just, speedy,

and inexpensive determination of every action and proceeding.

II. RULE 4: SUMMONS

A. OLD – The old Rule 4(m) stated that plaintiff must serve complaint within 120 days.

B. NEW – The new rule reduces this time limit to 90 days:

1. “Plaintiff must serve complaint within 90 days after it is filed.”

C. NEW – Exception applies to the 90 days rule:

1. The time limit for service does not apply to service of a notice under Rule 71.1(d)(3)(A). Rule 71.1

addresses condemnation of real or personal property.

OVERVIEW OF 2015 AMENDMENTS PROLOGUE

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III. RULE 16: PRETRIAL CONFERENCES, SCHEDULING, MANAGEMENT

A. OLD – The old Rule 16(b)(1) allowed the court to consult with the parties via telephone, mail or other

means.

B. NEW – The new Rule 16(b)(1) requires direct simultaneous communication, though it can be done via

telephone or other sophisticated electronic means. Further, the court, either under 16(b)(1)(A), after

receipt of Rule 26(f) report, or (B) direct communications, must issue a scheduling order.

1. Court must issue scheduling order after (A) receiving parties’ Rule 26(f) report or (B) consulting

with the parties via direct simultaneous communication. Those communications may be in person,

by telephone, or by more sophisticated electronic means.

C. OLD – Under the old 16(b)(2), courts must issue scheduling orders within the prescribed time limit of

90 to 120 days.

D. NEW – Under the new 16(b)(2), the court must issue scheduling order within 60 to 90 days unless the

court finds good cause for delay.

1. “Prescribed time limits are the earlier of 90 days after defendant was served or 60 days after any

defendant has appeared.”

E. OLD – A scheduling order under 16(b)(3)(B)(iii) could, not must, provide for disclosure of ESI

F. NEW – The 16(b)(3)(B)(iii) scheduling order may now provide for not only disclosure of ESI, but also

discovery and preservation of ESI.

G. NEW – Scheduling orders may include agreements reached under FRE 502 and movants may request

conference with the court. Rule 16(b)(3)(B)(iv)-(v).

IV. RULE 26: DUTY TO DISCLOSE, GENERAL PROVISIONS GOVERNING DISCOVERY

A. OLD – The old rule regarding the general scope of discovery, (Rule 26(b)(1)), had no mention of

proportionality. Instead, the language focused on whether discovery would “reasonably [be] calculated

to lead to admissible evidence.”

B. NEW – The new scope of discovery, under 26(b)(1), now provides that a party may discover information

that is (1) nonprivileged; (2) relevant to the claims and defense of the party; and (3) proportional to the

needs of the case. The new rule and its associated commentary, outline six [6] factors to be considered

in deciding whether a discovery request is proportional:

1. The importance of the issues at stake in the action;

2. The amount in controversy;

3. The parties’ relative access to relevant information;

4. The parties’ resources;

5. The importance of the discovery in resolving the issues; and

6. Whether the burden or expense of the proposed discovery outweighs its likely benefit.

C. OLD – The new rule also removed language regarding examples of discoverable information; the

power of the court, for good cause, to discover any relevant subject matter; discoverablity of relevant

but inadmissible matter if the request was reasonably calculated to lead to admissible evidence; and

shifted proportional factors out of 26(b)(2)(C)(iii).