Using the Amended Federal Rules of Civil Procedure to Guide Case Management

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1 Always Read the Rule By Kristen K. Orr and Chelsea R. Stanley The recent amendments seek to animate the rules broader purpose by expediting litigation and lessening the financial burden of discovery. Using the Amended Federal Rules of Civil Procedure to Guide Case Management If you take nothing else away from this article, take this one bit of advice: always read the rule. This applies whether you just graduated law school or have practiced law for 40 years. Before answering a complaint, participating in a conference with the court, responding to discovery, or drafting a motion, it is a best practice to review the applicable federal, state, or local rule. These rules may have changed since the last time you relied upon them. Indeed, the Federal Rules of Civil Procedure amendments that went into effect on December 1, 2015, contain many nuances that could alter your practice. There are countless articles outlining the amendments to Federal Rules of Civil Procedure 1, 4, 16, 26, 30, 34, 37, 55, and 84. Equally important as reviewing those changes is to understand how the rules can be used to manage cases effectively. The rule amendments increase judicial engagement in case management, charge the parties and their counsel with working cooperatively, and narrow the scope of discoverable information. In particular, the amendments to Federal Rules 16 and 26 provide a number of mechanisms to help courts and litigants engage in early, active case management. Amendments Focusing on Cooperation, Proportionality, and Management The primary purpose of the Federal Rules of Civil Procedure is to achieve a just, speedy, and inexpensive resolution of every case. Fed. R. Civ. P. 1. Continuous Kristen K. Orr is counsel at Stites & Harbison PLLC in the firm s Lexington, Kentucky, office. Her practice includes medical malpractice, mass tort actions, premises liability, product liability, employment liability, toxic tort, and a variety of personal injury matters. Ms. Orr served as a law clerk to the Honorable Jennifer B. Coffman, United States District Court Judge for the Eastern and Western Districts of Kentucky. She currently holds multiple leadership roles with DRI. Chelsea R. Stanley is a first-year associate at Stites & Harbison PLLC, in Jefferson, Indiana. She is a business litigation attorney in the firm s Torts & Insurance Practice Service Group. 50 For The Defense May DRI. All rights reserved.

2 scrutiny of the rules ensures that they achieve their underlying goals. The most recent amendments were developed after the May 2010 Conference on Civil Litigation. Over 70 judges, lawyers, and academics evaluated data and considered measures to address the rising costs and delays in the federal civil justice system. The recent amendments seek to animate the rules broader purpose by expediting litigation and lessening the financial burden of discovery. Fostering Earlier Case Management: Amendments to Rule 16 The Federal Rule 16 provisions were amended primarily to encourage early, effective communication between parties and to increase the efficiency of scheduling conferences. First, the provision requiring a scheduling conference to take place by telephone, mail, or other means was deleted. See Fed. R. Civ. P 16(b)(1)(B). Instead, a committee note accompanying the amendment urges parties to engage in direct simultaneous communication (in person, by telephone, or by more sophisticated electronic means). Fed. R. Civ. P. 16 advisory committee note. Second, the Rule 16 amendments expand the scope of scheduling orders to prevent unnecessary preservation efforts and document review and to reduce costly discovery disputes. The newly expanded provisions permit a scheduling order to include agreements concerning the preservation of electronically stored information and agreements reached under Federal Rule of Evidence 502, (work-product and attorney- client privilege), and to require a conference with the court before a party can move for a discovery- related order. Fed. R. Civ. P. 16(b)(1)(3)(B)(iii) (v). Third, the amended provisions shorten by 30 days the time within which a court must issue the scheduling order. A court must now issue a scheduling order within the earlier of two timeframes: 90 days after any defendant is served, or 60 days after any defendant has appeared. Fed. R. Civ. P. 16(b)(2). This amendment allows a court to set an expedited schedule while acknowledging that good cause may exist to extend the time to issue the scheduling order. See id. The shortened deadlines can also be seen in amended Fed. R. Civ. P. 4(m), which shortens the presumptive time for service. Shortened timelines encourage early case management by judges. The changes to Federal Rule 16 help litigants and the courts effectively engage in active, early case management. The amended Rule 16 necessitates meaningful communication between parties at the outset of litigation, allowing courts to set expedited schedules and quickly resolve disputes. Bringing Proportionality Front and Center: Amendments to Rule 26 The Federal Rule 26 provisions were amended to restore proportionality to the discovery process. Under the previous Rule 26, the permissible scope of discovery included any non- privileged matter relevant to any party s claim or defense. In response to a firestorm of criticism regarding overly broad discovery, Rule 26 was amended to limit discovery to matters proportional to the needs of the case. The parties involved in the litigation share responsibility to honor this limit on the scope of discovery. Fed. R. Civ. P. 26 advisory committee note. Most notably, the amended Rule 26 clarifies that inadmissibility is not a basis for opposing discovery of relevant information. The amended rule omits the phrase reasonably calculated to lead to the discovery of admissible evidence specifically to correct the misconception that it defined the scope of discovery. See Memorandum From Judge David G. Campbell, Chair, Advisory Committee on Federal Rules of Civil Procedure to Judge Jeffrey Sutton, Chair, Standing Committee on Rules of Practice and Procedure Agenda E-19 (Appendix B) Rules September 2014 (June 14, 2014). Instead, the rule states merely that information sought in discovery need not be admissible. Fed. R. Civ. P. 26(b)(1). The amended Rule 26 now explicitly requires balancing the burden and the expense of a discovery request with the relative import of the requested discovery in light of the particular issues in the case and the amount in controversy. Id. The parties and the court involved in a case now have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes. Fed. R. Civ. P. 26 advisory committee note. These are the proportionality factors: The importance of the issues at stake in the action, The amount in controversy, The parties relative access to relevant information, The rule amendments increase judicial engagement in case management, charge the parties and their counsel with working cooperatively, and narrow the scope of discoverable 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. But the proportionality factors are not new. After the 1983 amendments, the majority of the proportionality factors were contained in Federal Rule 26(b) (2)(C). See e.g., Jemsek v. Jemsek Clinic, P.A., 2013 Bankr. Lexis 3120, at *25 (U.S. Bankr. W.D.N.C. 2013) (noting that a party s request for documents was not proportional under Fed. R. Civ. P. 26(b)(2) (C)(iii) because a party need not produce documents if the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues. ). Indeed, when Rule 26 was revised in 1983, the Advisory Committee expressly noted that [e]xcessive discovery and evasion or resistance to reasonable discovery requests For The Defense May

3 pose significant problems. But over the years, the amendments put into place by the Advisory Committee in 1983 to address excessive discovery were forgotten. Thus, the [2015] amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in In response to a firestorm of criticism regarding overly broad discovery, Rule 26 was amended to limit discovery to matters proportional to the needs of the case. making discovery requests, responses, or objections. Fed. R. Civ. P. 26 advisory committee note. The most recent revisions have placed the factors prominently in section 26(b)(1), thereby making them an explicit component of the scope of discovery and renewing the Federal Rules Committees emphasis on proportionality. Rule 26 was also amended to bring it into accordance with the changes to Rule 16. Namely, Rule 26 now requires discovery plans to state the parties views and proposals on issues about (1) preservation of electronically stored information and (2) whether to ask the court to include their agreements regarding claims of privilege or protection in a court order. Fed. R. Civ. P. 26(f)(3)(C), (D). Similar to Federal Rule 16, these changes promote active judicial case management to reduce the delays in the early stages of litigation. Judicial Options for Earlier, More Effective Case Management The goal of case management is to resolve disputes as speedily, inexpensively, and fairly as possible. However, the casemanagement procedures that prove effective in one case may not be effective in 52 For The Defense May 2016 another. Rather, tailoring the procedures to the needs of the particular litigation is critical to effective case management. When courts (and litigants) actively engage in designing a tailor-made case- management plan in the initial stages of litigation, just resolutions can be achieved more quickly and with less expense. Federal Rules 16 and 26 are particularly apt tools to create such a plan. Practitioners should understand how courts can use both rules to aid in their proposed orders to and conferences with a court. Using Revised Rule 16 to Set the Tone of Litigation Judicial oversight in the early stages of litigation can prove invaluable to the efficiency of litigation. Federal Rule 16 is one of a court s most essential tools to set the tone of litigation. Under Rule 16, judges can hold the initial pretrial conference and issue a scheduling order as soon as practicable, but no later than the earlier of 90 days after any defendant is served or 60 days after any defendant has appeared. Fed. R. Civ. P. 16(b)(1)(B)(2). By conducting the pretrial conferences and issuing scheduling orders promptly, courts demonstrate to litigants that a dispute should be conducted expeditiously. A well-crafted scheduling order is critical to proper case management. Scheduling orders help ensure that litigants complete tasks in a timely fashion. Rule 16 explicitly requires that a scheduling order limit the time to join other parties, amend the pleadings, complete discovery, and file motions. Fed. R. Civ. P. 16(b)(3)(A). However, the most effective scheduling orders also refer to other important stages of litigation. For instance, a scheduling order may streamline discovery activities and set dates for future conferences. Fed. R. Civ. P. 16(b)(3)(B). Although developments later in the litigation may necessitate modifications to an initial scheduling order, designing a complete and comprehensive plan for litigation at the outset of the case facilitates a more efficient litigation process. Courts can use periodic joint status updates to stay apprised of case progression. A court s scheduling order can further provide that it will not enforce any agreements to extend discovery deadlines without court approval. A scheduling order may also require a conference with the court before a party can move for a discovery-related order. Fed. R. Civ. P. 16(b)(1)(3)(B)(v). Many judges already require pre-motion conferences to enable parties to resolve discovery disputes promptly and economically. This allows judicial management when the parties are legitimately unable to resolve important differences and when the parties fall short of effective, cooperative management on their own. Fed. R. Civ. P. 26 advisory committee note. As explained elsewhere, A judge who offers prompt assistance in resolving disputes without exchanges of motions and responses is much better able to keep a case on track, keep the discovery demands within the proportionality limits and avoid overly narrow responses to proper discovery demands. Report to the Chief Justice, Supreme Court of the United States on the 2010 Conference on Civil Litigation (Durham, N.C., May 10 11, 2010). Rule 16 can also be used to streamline a case by narrowing the factual and legal issues. For example, courts can employ Rule 16(c)(1) to dispose of insubstantial claims or defenses summarily. See Fed. R. Civ. P. 16(c) committee note; E.g., Huey v. United Parcel Serv., Inc., 165 F.3d 1084, 1085 (7th Cir. 1999). Then courts can conduct subsequent Rule 16 conferences to assist in further narrowing the disputed factual and legal issues. For example, conducting a conference after ample discovery may reveal that certain other claims or defenses are insubstantial. At such postdiscovery conferences, a court may also question the litigants regarding the propriety of summary judgment or Daubert motions. Courts may even discourage a proposed motion when issues of material fact are clearly present to avoid the accompanying delay in litigation and unnecessary burdens to the court and other litigants. Accordingly, Rule 16 provides numerous mechanisms for the courts to become (and stay) involved in litigation. Empirical studies that have focused on cases in which judges personally intervene at early stages of litigation to assume control over a case by scheduling dates for the completion of certain pretrial steps show that cases are disposed of more

4 efficiently when the courts are actively engaged in case management. E.g., Steven Flanders, Case Management and Court Management in United States District Courts 17, Federal Judicial Center (1977) (finding that such cases are disposed of with less cost and delay than cases in which the parties are largely left to their own devices). Using Revised Rule 26 to Structure Case Management Parameters Federal Rule 26 often works in tandem with Rule 16 to allow courts to set an early, albeit effective, case management plan. For example, adopting a plan for discovery is one of the principle purposes of the initial Rule 16 conference. Counsel must develop this discovery plan before the initial pretrial conference as specified by Rule 26(f). This facilitates case management by providing the court with meaningful information to consider at the Rule 16 conference. Courts consider the litigants discovery plan when drafting an effective scheduling order, so practitioners should give due consideration to the proposals that they file with a court. For example, the Rule 16 scheduling order may accomplish the following: modification of the time limits set forth in Rule 26(a)(1); establishment of the dates for supplementing these disclosures under Rule 26(e)(1); creation of a schedule for amending discovery responses as required by Rule 26(e)(2). Fed. R. Civ. P. 16(b)(3). Using the Rule 16 scheduling order to outline the litigants discovery plan, in sufficient detail, organizes the litigation and clarifies the litigants responsibilities. Rule 26 can also be used by the judiciary to pare down cases to what is truly at stake and guide litigants toward quicker and less- expensive resolutions. For example, Rule 26(b) now tasks the judiciary with limiting redundant and disproportionate discovery by consider[ing] the proportionality of all discovery and consider[ing] it in resolving discovery disputes. Fed. R. Civ. P. 26 advisory committee note. Rule 26(c) also helps pare down cases by allowing a court to limit the scope of the discovery by issuing orders to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Litigants Options for Earlier, More Effective Case Management Federal Rule of Civil Procedure 1 was also amended to embrace this casemanagement ethos. Rule 1 now provides that the Federal Rules of Civil Procedure should be employed by the courts and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. (emphasis added). Courts and the parties share the responsibility to implement the rules. Moreover, effective advocacy depends on cooperative and proportional use of procedure. Fed. R. Civ. P. 1 advisory committee note. While Rule 16 and Rule 26 (as amended) provide tools that courts can use to actively and effectively manage their cases, as mentioned, the responsibility to engage in active and effective case management is also the responsibility of the litigating parties. See, e.g., Fed. R. Civ. P. 1. Specifically, during the pretrial phase, parties can use the provisions set forth in Rule 16 and Rule 26 to attack meaningfully the problems of cost and delay that are increasingly associated with litigation. Actively Participate in Case Management and Adhere to the Schedule As alluded to above, Federal Rule 16 gives judges broad discretion over a number of aspects of pretrial procedures. Namely, a court is permitted to expedite the cases that it oversees, control case management, discourage wasteful pretrial activities, require thorough preparation, and facilitate settlement. Fed. R. Civ. P. 16(a) (1) (5). Moreover, a court can eliminate frivolous claims, amend pleadings, control and schedule discovery, order separate trials, and facilitate in other ways the just, speedy, and inexpensive disposition of the action. Fed. R. Civ. P. 16(c)(2)(A) (P). In other words, there is seemingly no (reasonable) pretrial relief that cannot be granted by a court. By extension, parties may move the court, under Rule 16, to exercise such discretion favorably. There are several ways subtly to urge a court to exercise its broad discretion in your favor. First, meticulously evaluate your case before the initial Rule 16 conference. Make a note of what orders you need from a court to further your strategy. Preparedness helps demonstrate that you are Rule 26 can also be used by the judiciary to pare down cases to what is truly at stake and guide litigants toward quicker and less- expensive resolutions. as committed to efficient case management as the court. For example, in accordance with Rule 16(c)(1), you should be prepared to make stipulations and admissions about all matters that can reasonably be anticipated for a discussion at [any] pretrial conference. Second, be diligent. Practitioners should carefully read and follow scheduling orders because courts continue to use Rule 16 to manage their docket. But when the need arises, a variety of pretrial orders can be modified by a court for good cause. See Fed. R. Civ. P. 16(b) (2), (4). To demonstrate the necessity of a modification, explain not only your personal dilemma, but also the context of the case that makes the adjustment necessary. Appealing to the sympathies of your judge, alone, will not suffice. Provide the facts of the case and the context in which you find yourself. Otherwise, you may appear apathetic to the court s efforts to construct the previous order. In other words, prove your diligence. Santiago- Diaz v. Laboratorio Clinico y de Referencia del Este, 456 F.3d 272, 276 (1st Cir. P.R. 2006) (reprimanding counsel for not coming within a country mile of satisfying the requirements of either the case- management order or the Civil Rules. ). References should also be made to the fairness and reasonableness of the relief sought, as well as the lack of prejudice to the opposing side if the relief is granted. Third, maintain credibility. Losing credibility with a judge can result in less favorable rulings on discretionary pretrial matters. More importantly, judges often discuss the reputation of attorneys For The Defense May

5 good or bad with other judges. Put simply, reputation accumulates. It can add substantial authority to your efforts to establish a rapport with a court so that discretion is exercised in your favor. Tesco Corp. v. Nat l Oilwell Varco, L.P., 804 F.3d 1367, 1379 (Fed. Cir. 2015) ( [A]n attorney s reputation is one of his or her most valuable assets. ). By providing a court with meaningful arguments to consider at the Rule 16 conference, you are more likely to achieve a case-management plan that fits the needs of your particular case. Use Proportionality as Guide Early and Often As previously explained, Federal Rule 26 often works in tandem with Rule 16 to allow courts to construct an early, albeit effective, case- management plan. Rule 26 is also an effective tool for parties to support their early case management efforts. Parties have a collective responsibility to consider the proportionality of discovery. Fed. R. Civ. P. 26 advisory committee note. However, at the outset of a case, the parties may not have a full understanding of the factors that bear on proportionality, such as the needs of the case, the importance of the issues, or the amount in controversy. Accordingly, these uncertainties should be fully addressed in the parties Rule 26(f) conference. Fed. R. Civ. P. 26 advisory committee note. Addressing these issues at the outset of the case will help you minimize (or eliminate) later discovery disputes and the expense associated with unneeded document review. The amendments to Rule 26 assist in preparing the parties to address such uncertainties properly. Under Federal Rule 54 For The Defense May (d)(2), as amended, you are now permitted to serve discovery requests before the initial Rule 26(f) conference. This rule was designed to facilitate focused discussion during the Rule 26(f) conference and thereby increase cooperation among the parties. Fed. R. Civ. P. 26 advisory committee note. See also Coppola v. Smith, No. 1:11-cv-1257, 2015 U.S. Dist. Lexis (E.D. Ca. 2015) (granting motion for informal discovery conference). You may refuse unduly burdensome discovery requests if the burden or the expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). Such arguments were often, but not always, rejected in the past. Compare Adv. Tactical Ordnance Sys. LLC v. Real Action Paintball Inc., No. 1:12-CV-296, 2013 U.S. Dist. Lexis (N.D. Ind. Feb. 25, 2013), with Carolina Bedding Direct, LLC v. Downen, No. 3:12-CV-336, 2013 U.S. Dist. Lexis (M.D. Fla. May 7, 2013). However, because Rule 26 has placed a renewed emphasis on proportionality, courts may prove to be more amenable to proportionality arguments. Practitioners should prepare specific objections geared toward the proportionality factors because the revisions were not intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. Fed. R. Civ. P. 26 advisory committee note. Thus, practitioners cannot simply recycle old discovery responses for use in response to new cases. Federal Rule 34 requires objections to be stated with specificity, which means that objections should recite the applicable proportionality factors in response to discovery requests. Practitioners should address proportionality early and offer proportional alternatives to overly broad or unduly burdensome discovery requests. Blanket objections refusing to provide any documents fail to guide a court to understand the discovery that is proportionally relevant to the claims. When discovery disputes inevitably arise, in seeking early resolution from a court before motion practice, the party objecting to discovery should avoid citing precedent relating to reasonably calculated language, given the elimination of such language from the rule. Rather, while the case law develops, parties should instead look to the supporting language in the Advisory Committee Notes when addressing lack of proportionality with the courts. Depending on the circumstances of the discovery dispute, one side may be better able to identify the applicability of a proportionality factor than the other. See, e.g., Fed. R. Civ. P. 26 advisory committee note ( A party claiming undue burden or expense ordinarily has far better information perhaps the only information with respect to that part of the determination. ). But with the new proportionality factors, don t lose sight of relevancy: Rule 26 makes clear that discovery must be both relevant and proportional. Practitioners can continue to rely on substantive case law that guides the relevancy component of discovery. The changes to Rule 26 urge you to engage in a thorough analysis of your case before the Rule 16 conference. Such preparation will later place you in a better strategic position to advance case- management arguments that are favorable to your case. By providing a court with meaningful arguments to consider at the Rule 16 conference, you are more likely to achieve a case- management plan that fits the needs of your particular case. As your case progresses, the parties should continue to involve the court before discovery issues become unmanageable. Conclusion The overall purpose of the Federal Rules of Civil Procedure is to achieve a just, speedy, and inexpensive resolution of every case. Fed. R. Civ. P. 1. Cases are resolved more quickly and with less expense when there is early, active judicial oversight. Genuine engagement by the parties in this process makes the casemanagement process even more effective. Rule 16 and Rule 26, as amended, reflect this case- management ethos. The amendments increase judicial engagement in case management, task the parties and their counsel with working cooperatively, and narrow the scope of discoverable information. Accordingly, if used appropriately by the courts and the parties, the rules have considerable promise to effectuate the overall purpose of the Federal Rules of Civil Procedure.