FRCP
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The document summarizes the key changes to the Federal Rules of Civil Procedure (FRCP) that took effect on December 1, 2015. The amendments aim to encourage early and meaningful engagement between parties to appropriately narrow the scope of discovery. Specifically, Rule 16 requires earlier scheduling orders that address preservation of electronically stored information and discovery conferences. Rule 26 redefines discovery's scope to only include information that is relevant and proportional. It also allows parties to request documents before discovery conferences. Rule 34 requires specific objections to document requests rather than boilerplate objections. Rule 37 establishes standards for sanctions over lost electronically stored information that focus on parties acting reasonably during preservation efforts.
FRCP
- 1. HEAD IN A SPIN OVER THE FRCP AMENDMENTS? Here’s a practical overview of the December 1, 2015 amendments. The Federal Rules of Civil Procedure (FRCP) amendments aim to encourage cooperation among counsel, facilitate early case management, and ensure that discovery is proportional and targeted. They also address preservation of electronically stored information (ESI) and provide a national sanctions regime for ESI loss. Under Rule 16, scheduling orders are now due the earlier of 90 days from service on any defendant or 60 days after any defendant’s appearance, and may address: • ESI preservation. • FRE 502(d) orders. • Discovery conference requirements. RULES 16 AND 26: EARLY CASE MANAGEMENT = EFFECTIVE CASE MANAGEMENT Under Rule 26, parties now may deliver Rule 34 document requests before the Rule 26(f) conference (with responses due 30 days after the parties’ first Rule 26(f) conference), permitting parties to have meaningful conversations about the scope of discovery requests sooner – not later. Rule 26(b)(1) redefines the scope of discovery to permit only discovery that is both: • Relevant to any party’s claim or defense. • Proportional to the needs of the case, when considering: • the importance of the issues; • the amount in dispute; • the parties’ relative access to information; • the parties’ resources; • the importance of the discovery sought; and • the burden of the discovery versus its benefit. RULE 26 SCOPE OF DISCOVERY = PROPORTIONAL + RELEVANT TO A CLAIM OR DEFENSE Objections to document requests must: • Be stated with specificity. • State whether any information is being withheld based on an objection. RULE 34: SPECIFIC OBJECTIONS = NO BOILERPLATE RULE 37(E): ESI PRESERVATION AND SANCTIONS = ACT REASONABLY Under Rule 37(e), a party’s failure to preserve ESI entitles an adversary to obtain relief only if: • The party had a common law duty to preserve the ESI because it reasonably anticipated litigation. • The party’s preservation efforts were unreasonable. • The information was lost or destroyed and cannot be restored or replaced through additional discovery. The standard for preservation is reasonableness, not perfection, and courts should evaluate: • The party’s conduct at the time it executed its preservation efforts. • The extent to which third parties had effective control of the lost ESI. • Whether the preservation efforts were proportional. As for sanctions, a court can order only: • Relief that is “no greater than necessary” to cure any prejudice suffered, where the party had no intent to deprive its adversary of using the ESI in the litigation. • Case-altering sanctions, where the party destroyed ESI with the intent of depriving its adversary of the information. Read more about the amendments in full at www.PracticalLawFRCPChanges.com. RULE 1: EFFECTIVE ADVOCACY = COOPERATION Rule 1 now charges the parties and the court with using the rules to “secure the just, speedy and inexpensive determination of every action and proceeding.” The change emphasizes that attorneys and parties “share the responsibility” with the court of moving cases forward in a cooperative and proportional manner. About Practical Law Practical Law helps law firms practice smarter, operate more efficiently and better serve clients. Our expert team of full-time attorney editors creates and maintains up-to-date, practical resources used by 85% of AmLaw 200 firms, hundreds of mid-size and boutique firms and over 3,000 corporate law departments. Request your free trial today at us.practicallaw.com.