Changes to the Federal Rules of Civil Procedure, Dec. 2015
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The Federal Rules of Civil Procedure were amended in December 2015 to focus on four key areas: greater cooperation among litigants, earlier and more active case management by judges, greater proportionality in discovery, and a new rule addressing preservation and loss of electronically stored information. The amendments aim to make the civil litigation process more just, speedy, and inexpensive. Key changes include an emphasis on cooperation in Rule 1, earlier scheduling conferences and orders in Rule 16, incorporating proportionality factors into the scope of discovery in Rule 26, and establishing uniform standards for curative measures and sanctions for spoliation of ESI in new Rule 37(e).
Changes to the Federal Rules of Civil Procedure, Dec. 2015
- 1. Changes to the Federal Rules of Civil Procedure Effective December 1, 2015
- 2. Speaking Today: Julianne Walsh Attorney-in-Residence, Nextpoint Client Success Expertise: ■ eDiscovery Processes ■ Real Estate and Intellectual Property Law ■ Cloud Security Julianne Walsh
- 3. Purpose of the Amendments Four areas of focus: ■ Greater cooperation among litigants ■ Earlier and more active case management by judges ■ Greater proportionality in discovery ■ A new rule addressing the preservation and loss of electronically stored information (“ESI”)
- 5. Cooperation RULE 1- Scope of Discovery ■ The Rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." ■ Effective advocacy is consistent with – and indeed depends upon – cooperative and proportional use of procedure
- 6. 2. Early, Active Judicial Case Management
- 7. Early, Active Judicial Case Management RULE 16- Pretrial Conferences, Scheduling and Management ■ 16(b)(1) – Scheduling Conference: the court and parties engage in “direct simultaneous communication.” ■ 16(b)(2) – Scheduling Order Timing: reduces the time to issue a scheduling order to the earlier of 90 days (from 120 days) after any defendant has been served, or 60 days (from 90 days) after any defendant has appeared ■ 16(b)(3)(B)(iii) and (iv) – Scheduling Order Permitted Contents: scheduling order may provide for preservation of ESI and any agreements parties reached under FRE 502 ■ 16(b)(3)(B)(v) – Scheduling Order Permitted Contents: before moving for an order relating to discovery, the movant must request a conference with the court
- 8. Early, Active Judicial Case Management Federal Rule of Evidence 502(b) prevents disclosure from operating as a waiver in three circumstances: ■ The disclosure is inadvertent; ■ The holder of the privilege or protection took reasonable steps to prevent disclosure; and ■ The holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).
- 9. Early, Active Judicial Management Best Practices for Drafting a Clawback Agreement: ■ Establish that inadvertent disclosure is not a waiver ■ Incorporate the clawback into a protective order ■ Eliminate disputes about reasonable steps ■ Establish procedures for invoking the clawback
- 11. Proportionality RULE 26- Defines Scope of Discovery 26(b)(1) - requires relevant and proportional discovery. Proportionality Factors include: ■ Considering importance of the issues at stake in the action ■ The amount in controversy ■ Parties’ relative access to relevant information (new factor) ■ Parties’ resources ■ Importance of the discovery in resolving the issues ■ Whether the burden or expense of the proposed discovery outweighs its likely benefit
- 12. Rule 26 Practice Tips ■ All proportionality factors should be addressed for each case ■ Focus on specific discovery at issue and avoid arguments about discovery in general ■ Technologies to reduce cost and burden should be considered in the proportionality analysis as well as other alternative approaches to discovery. ■ Raise discovery scope and proportionality issues early and continue to address and revisit them as appropriate - Rule 26(d)(2) ■ Become familiar with Advisory Committee Notes
- 13. Other Discovery Changes RULE 34(b) - Response and Objections ■ Response must state with specificity the grounds for objecting. ■ Response must indicate whether the producing party is withholding any documents on the basis of that objection ■ Response must indicate when the producing party will provide responsive documents
- 14. 4. Preservation of ESI
- 15. Preservation of ESI Rule 37(e)- Curative Measures/Sanctions for Spoliation RULE 37(e) was created to: ■ Establish uniformity among the Circuits ■ Discourage a default practice of saving everything to avoid sanctions ■ Approach preservation using proportionality factors
- 16. Rule 37(e) Curative Measures/Sanctions
- 17. Preservation of ESI Factors a court will consider to determine whether a party’s preservation efforts rise to the level of reasonable steps: ■ Sophistication of the parties ■ Awareness of the risk of loss ■ Resources of the parties
- 18. Rule 37 Practice Tips ■ Information will be lost even with reasonable steps. Make a record of how you did it and why. ■ Do not wait until 26(f) conference to deal with preservation. ■ Preservation is an ongoing process. What steps can be taken to allow me to make a defensible decision? ■ Proportionality considerations also apply to preservation decisions and disputes.
- 19. Recap ■ Meet early to discuss preservation and discovery issues ■ Use Clawback Agreements ■ Be Specific in your requests and objections ■ Be Reasonable in your approach to preservation and discovery ■ Read the Advisory Committee Notes
- 22. Helpful Resources A Practical Guide to Achieving Proportionality Under the New Federal Rule of Civil Procedure 26 7th Circuit Electronic Discovery Pilot Committee Model Discovery Plan and Model Privilege Order New Rules, New Opportunities Rule 37(e). The New Law of Electronic Spoliation The Sedona Conference Commentary on Proportionality in Electronic Discovery
- 23. Helpful Resources Rule 1 and Advisory Committee Note Rule 16 and Advisory Committee Note Rule 26 and Advisory Committee Note Rule 34 and Advisory Committee Note Rule 37 and Advisory Committee Note
- 24. PROVIDER 2 nextpoint.com Click to download a PDF of this presentation: www.nextpoint.com/2015-frcp- changes-webinar Order. Beyond the Court.®