Foran Glennon Palandech Ponzi & Rudloff

February 2016

Be Prepared: How the New Changes to the Federal Rules of Civil Procedure Affect You

Kathleen M. DeLaney and Jennifer N. Wahlgren

Significant amendments have been made to the Federal Rules of Civil Procedure (“FRCP”), effective December 1, 2015.  The key changes involve amendments intended to advance early case management, amendments intended to promote proportionality in discovery, and changes to Rule 37(e) related to the preservation of electronically stored information (“ESI”) and grounds for sanctions for failure to preserve ESI.  Generally, the amendments are intended to focus the litigation on the merits of the case rather than discovery sideshows, and require attorneys to have a strong understanding of their client’s ESI and the appropriate scope of discovery very early in the case.  This article highlights some of the changes that may directly impact you and your practice.


Amendments Intended to Advance Early Case Management


Efficient and cost-effective e-discovery depends on both a cooperative relationship with opposing counsel and early and active management of e-discovery issues. To better serve these goals, the FRCP amendments shorten the timeframes for service and initial scheduling conferences, direct attorneys to work with the court to achieve the “just, speedy, and inexpensive determination of every action,” and permit parties to serve document requests before the initial scheduling conference.


For example, under the amended Rule 4(m), the time limit for service of the complaint has been reduced from 120 days to 90 days.  Under the amended Rule 16, the Scheduling Order must be issued 90 days after service (down from 120), or 60 days after defendant has appeared (down from 90.)  Further, Rule 1, which requires the just, speedy, and inexpensive determination of every action and proceeding, previously only applied to judges.  Now, lawyers and their clients are also responsible for speedy and cost efficient proceedings.


Significantly, amended Rule 26(d)(2) allows for service of Rule 34 requests (requests for production of ESI, tangible things and/or documents) prior to the parties’ Rule 26(f) conference (but more than 21 days after summons and complaint are served.)  The Rule 34 requests are considered served at the Rule 26(f) conference, and responses are due 30 days thereafter.


Moreover, under the amended Rule 34, an objection to a request must be stated with specificity, and the responding party must superficially state whether any documents will be withheld on the basis of the specified objection.  Also, gone are the days of providing written responses with a vague promise to produce responsive documents at a later date.  Now, the responsive documents must be produced no later than either (1) the deadline specified in the requests, or (2) a “reasonable” time stated in the responses.  Thus, the amendments require parties to know what documents they are producing, what documents they are withholding, and what their grounds are for withholding documents at the time they serve their Rule 34 written responses.


Proportionality in Discovery


Parties often have large amounts of ESI subject to disclosure, and typically they bear all costs associated with production. Requesting parties often lack sufficient information to design narrow and targeted discovery requests, and therefore they are sometimes incentivized to serve unduly burdensome discovery requests, with little downside or risks to themselves.  In an attempt to limit unnecessary discovery and unduly burdensome discovery requests, the amended rules set forth a scope of discovery that now includes proportionality factors and a new factor related to access to the information.  Discoverable matters must be relevant to any party’s claim or defense and proportional to the needs of the case, considering:


  • 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.


Under this new standard, attorneys and their clients can no longer rely on “reasonably calculated to lead to the discovery of admissible evidence” to justify broad discovery requests.


Under the amended Rule 16, the Court’s Scheduling Order may also provide for the preservation of ESI, for agreements reached under Rule 502 (regarding non-waiver for inadvertent disclosure of privileged documents), and it may direct that a movant must request a conference with the court before moving for an order related to discovery.  In conjunction with the amendments to Rule 16, Rule 26(f)(3) was also amended to require the discovery plan to include discussion about preservation of ESI and whether to ask the court to include the parties’ agreement under Rule 502 in an order.  All of these amendments are intended to move cases along and prevent needless discovery motions.


Preservation of ESI and Sanctions for Spoliation


Companies often over-preserve vast amounts of data out of fear that some ESI might be lost, and that their actions may in hindsight be deemed negligent or subject them to drastic spoliation sanctions.  This phenomenon is caused, in part, by the varying spoliation standards adopted by courts in different jurisdictions.  To address concerns regarding over-preservation, amended Rule 37(e) requires a party seeking any remedy for lost ESI to demonstrate that:


  • a duty to preserve the ESI existed before litigation was reasonably anticipated,
  • the information subject to preservation is electronic and was lost or destroyed,
  • the information cannot be restored or replaced through additional discovery,
  • the producing party failed to use reasonable preservation efforts.


Once these elements are satisfied, a party may seek (1) relief that is “no greater than necessary to cure” any prejudice suffered, where there was no intent to deprive a party of the lost ESI, or (2) drastic sanctions like adverse inferences, where a party destroyed ESI with the intent of depriving the adversary of the information.


Thus, sanctions for failure to preserve ESI will no longer be permitted on a finding of mere negligence, or even gross negligence.  Rather, the imposition of sanctions must be based only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation.  Further, the amended Rule 37(e) emphasizes judicial discretion to apply curative or remedial measures rather than harsh sanctions.


These amendments affect attorneys and their clients alike, and they have the potential to reshape certain aspects of the discovery process.  Though the ultimate impact of the amendments remains to be seen, and arguments by parties on both sides will need to be evaluated and resolved, practitioners and litigants would be well-served to remain mindful of these amendments as they enter into any federal litigation.