THIS article provides an overview of the "package" of amendments to the Federal Rules of Civil Procedure, which were collectively forwarded to Congress for evaluation this spring. A copy of the text of each of the proposals is included in the Appendix to this article. The amendments will become effective on December 1, 2015 if Congress does not adopt legislation to reject, modify, or defer them. (1)
History of the Amendments
The amendments to the Federal Rules of Civil Procedure, which were collectively forwarded to Congress by the Supreme Court on April 29, 2015, (2) culminated a four-year effort by the Civil Rules Advisory Committee (the "Rules Committee") operating under the supervision of the Committee on Rules of Practice and Procedure of the Judicial Conference (the "Standing Committee").
The process began with the 2010 Conference on Civil Litigation held by the Rules Committee at the Duke Law School (the "Duke Conference"). The Duke Conference was held in response to concerns about the "costs of litigation, especially discovery and e-discovery." (3) A number of studies, surveys and empirical studies were submitted in advance, and panels discussed the relevant issues. (4)
Key "takeaways" from the Duke Conference included the need for improved case management, application of the long-ignored principle of "proportionality" and cooperation among parties in discovery. (5) In addition, an e-discovery panel "reached a consensus that a rule addressing preservation (spoliation) would be a valuable addition to the Federal Rules of Civil Procedure." (6)
The Rules Committee divided the task of developing individual rule proposals between the "Duke" Subcommittee, chaired by the Hon. John Koeltl, and the Discovery Subcommittee, subsequently chaired by the Hon. Paul Grimm. The Discovery Subcommittee focused on a replacement for Rule 37(e). (7) Both subcommittees vetted alternative draft rule proposals at "mini-conferences."
An initial "package" of the proposals resulting from these efforts was released for public comment in August 2013. (8) After a robust public comment period, the subcommittees recommended revisions, which were adopted by the Rules Committee at its April 2014 meeting in Portland, Oregon. The Standing Committee unanimously approved the revised proposals at its May 29, 2014 meeting.
The revised proposals were then submitted with recommendations for approval to the Judicial Conference, (9) which approved the rules on their "consent calendar" and forwarded them to the Supreme Court for its review. (10) The Supreme Court adopted the proposed amendments without change and forwarded the full package to Congress after having suggested certain minor changes in several Committee Notes. (11)
Hearings and Public Comments
The Rules Committee conducted Public Hearings on the initial proposals in late 2013 and early 2014 that involved 120 testifying witnesses. (12) The first hearing was held by the Committee in Washington, D.C. on November 7, 2013 and was followed by a second hearing on January 9, 2014 in Phoenix, and a third and final hearing on February 7, 2014 at the Dallas (DFW) airport. In addition, the Committee received over 2,300 written comments. (13)
Lawyers for Civil Justice ("LCJ") (14) and the American Association for Justice ("AAJ," formerly "ATLA") provided expansive comments. (15) The AAJ urged rejection of rules that added proportionality factors to the scope of discovery, imposed reduced presumptive limits and "made sanctions less likely in instances of spoliation," whereas LCJ supported limiting sanctions, adding proportionality to the scope of discovery, acknowledging cost-allocation and making reductions in presumptive numerical limits on use of discovery devices.
Individual comments were submitted by representatives of corporate entities and affiliated advocacy groups and law firms as well as attorneys and representatives of plaintiff advocacy groups for individual claimants. Members of the academic community testified and submitted written comments. Commentators have described doubts expressed by some academics about whether those advocating changes were being candid about their motives. (16)
In addition, the Federal Magistrate Judges Association ("FMJA"), the Association of Corporate Counsel ("ACC"), the Department of Justice ("DOJ"), the Sedona Conference[R] WG1 Steering Committee ("Sedona") and a cross-section of state bar associations also dealt comprehensively with the proposals.
Since adoption of the post-hearing revisions by the Supreme Court, published assessments by critics of the initial proposals have indicated substantial satisfaction with the final versions. (17) That has not been true of some members of the academic community, (18) as will be noted where relevant.
The "Duke" Amendments
The Duke Subcommittee was primarily responsible (19) for developing rule-based proposals other than those dealing with pleadings or the replacement for current Rule 37(e). (20) The Subcommittee worked from suggestions floated at the Duke Conference and developed additional ones, which were whittled down as needed. We turn first to the proposals loosely described as the "Duke" amendments.
Cooperation (Rule 1)
The Subcommittee proposed to amend Rule 1, which speaks of the need to achieve the "just, speedy, and inexpensive determination of every action and proceeding" so as to require that it be "construed, administered and employed by the court and the parties to secure" its goals. The Committee Note provides that "the parties share the responsibility to employ the rules" in that matter. (21)
The Note further observes that "most lawyers and parties cooperate to achieve those ends" and that "[e]ffective advocacy is consistent with--and indeed depends upon--cooperative and proportional use of procedure." (22)
The Subcommittee considered but ultimately refused to recommend that Rule 1 should be amended to require that parties "should cooperate" to achieve the goals of Rule 1. (23) The concept was deemed to be "too vague, and thus fraught with the mischief of satellite litigation." (24) A similar attempt was rejected in 1978. (25)
Participants at the Duke Conference emphasized cooperation in achieving the goals of Rule 1, after the proposal had assumed prominence as a result of the Sedona Conference[R] Cooperation Proclamation. (26) Proponents argued that cooperation could go a long way towards achieving proportional discovery and reducing the need for judicial management. Many local rules (27) and other e-discovery initiatives (28) invoke cooperation as an aspirational standard.
The difficulty with adding "cooperation" to the text of Rule 1 was the possibility of "collateral consequences." (29) Opponents argued that it was unclear whether "cooperation" means something more than a willingness to take opportunities to discuss defensible positions in good faith (30)--in short, whether it mandates compromise. (31) Some questioned whether "cooperation" included an obligation to settle on reasonable terms, as considered by a court, (32) and the experience with mandated cooperation is not favorable. (33)
Some respondents raised concerns during the public comment period about the references to "cooperation" in the Committee Note, especially as to the "proper balance" between cooperative actions and the professional requirements of effective representation. (34) Others, however, suggested that "cooperation" should be incorporated in the Rule. (35) The Sedona Conference[R] was not among them, having concluded that language along the lines of the Committee proposal would be sufficient. (36)
Revised Committee Note
At the May 2014 Standing Committee meeting, the Subcommittee announced that the Committee Note would be amended to clarify that the change to the rule was not intended to serve as a basis for sanctions for a failure to cooperate. (37) The final version of the Note adds that "[t]his amendment does not create a new or independent source of sanctions" and "neither does it abridge the scope of any other of these rules." (38)
A series of amendments were proposed collectively to help ensure that judges "manage [cases] early and actively." (39) These changes include amendments to Rules 4(m), 16, 26, 34, and 55.
Timing (Service of Process) (Rule 4(m)) (40)
The time limits in Rule 4(m) governing the service of process will be reduced from 120 to 90 days. The intent is to "reduce delay at the beginning of litigation." (41) The subdivision does not apply to service in a foreign country "or to service of a notice under Rule 71.1(d)(3)(A)."
In response to a request by the Supreme Court, the Note no longer makes the observation that shortening the presumptive time for service will increase the occasions to extend the time "for good cause." (42)
The interplay between Rules 54(b), 55(c) and 60(b) will be clarified by inserting the word "final" in front of the reference to default judgment in Rule 55(c).
Discovery Requests Prior to Meet and Confer
A new provision (Rule 26(d)(2) ("Early Rule 34 Requests")) will allow delivery of discovery requests prior to the "meet and confer" required by Rule 26(f). The response time will not commence, however, until after the first Rule 26(f) conference. Rule 34(b)(2)(A) will be amended as to the time to respond "if the request was delivered under 26(d)(2)--within 30 days after the parties' first Rule 26(f) conference.
The Committee Note explains that this relaxation of the existing "discovery moratorium" is "designed to facilitate focused discussion during the Rule 26(f) Conference," since discussion may produce changes in the requests. (43)
Rule 16(b)(1) will be modified by striking the reference to conducting scheduling conferences by "telephone, mail, or other means" to encourage direct discussions among the...