Recent Amendments to the Federal Rules of Civil Procedure. The Mississippi Bar Convention Summer School for Lawyers 2016

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1 Recent Amendments to the Federal Rules of Civil Procedure The Mississippi Bar Convention Summer School for Lawyers 2016

2 History The impetus to change these Rules was the May 2010 Conference on Civil Litigation held by the Civil Rules Advisory Committee at Duke Law School (the Duke Conference ). After the Duke Conference, the Discovery Subcommittee and a Duke Subcommittee drafted the individual rule proposals. The Committee released the rule proposals for public comment in August The period for public comment ended in February The changes went into effect on December 1, 2015.

3 Goals Decrease costs of litigation Decrease delays in litigation Create more efficient case management Apply the discovery principle of proportionality Promote cooperation in discovery Create uniform national rules regarding preservation and spoliation of ESI

4 Cooperation (Rule 1) The rules will be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. Fed.R.Civ.P. 1. Intended to encourage and foster cooperation among counsel and parties. The amendment does not create a new source of sanctions or expand against whom sanctions can be obtained.

5 Case Management (Rules 4, 16, 26, 34) Time Period for Service of Process: - Rule 4(m) - The amendment reduces the time to serve process from 120 days to 90 days - [Note: The original proposal would have reduced the time period to 60 days.]

6 Case Management (Rules 4, 16, 26, 34) Time Period to Issue Case Management Order: - Rule 16(b)(2) - The new Rule requires that the CMO issue no later than 90 days after any defendant has been served or 60 days after any appearance of a defendant (shortened from 120 and 90 days, respectively, under the former Rule).

7 Case Management (Rules 4, 16, 26, 34) Discovery Requests Prior to Meet and Confer: - Rule 26(d)(2) ( Early Rule 34 Requests ) - NEW RULE allows parties to propound Requests for Production before the meet and confer required by Rule 26(f). - They may be served more than 21 days after the summons and complaint are served on a party. - The response time does not begin to run until the first Rule 26(f) conference (i.e., they are considered served then).

8 Case Management (Rules 4, 16, 26, 34) Conference with Magistrate Judge before filing a discovery motion: - Rule 16(b)(3)(B)(v) - The amendment authorizes judges to require that the parties have a conference with the magistrate judge before filing a discovery motion. - Whether to require such a conference is left to the discretion of the judge. - We have amended our CMO form, in section 6.F.4., to include a provision requiring such a conference.

9 Case Management (Rules 4, 16, 26, 34) Addressing ESI Preservation and Production: - Rules 26(f)(3)(C) and 16(b)(3)(B)(iii) - Rule 26(f) amended to add ESI as one of the topics to be addressed in the parties proposed CMO - specifically, preservation of ESI and the form(s) in which ESI will be produced. - Rule 16(b) amended to add ESI preservation as a topic that may be included in the CMO. - Our Local Rule 26(e) sets forth a list of ESI issues to be addressed in the Rule 26(f) conference, and our CMO form contains a section for addressing ESI preservation and production.

10 Case Management (Rules 4, 16, 26, 34) Use of FRE 502: - Rules 26(f)(3)(D) and 16(b)(3)(B)(iv) - The amendments include use of FRE 502 as a topic for the Rule 26(f) conference and for the CMO. - FRE 502(d) provides that [a] federal court order may order that the [attorney-client] privilege or [work product] protection is not waived by disclosure [in the pending case]... [and such disclosure] is also not a waiver in any other federal or state proceeding. - It operates as a clawback order. - Our CMO form includes this option in section 6.F.2.

11 Scope of Discovery (Rule 26) Focus on Proportionality: - Rule 26(b)(1) - Rule 26(b)(1) defines the scope of discovery as any nonprivileged matter that is relevant to any party s claim or defense. - The amendment adds to the definition that discovery must also be proportional to the needs of the case. - The Committee deleted the language, reasonably calculated to lead to the discovery of admissible evidence, from Rule 26(b)(1). - The Committee kept the language that the [i]nformation... need not be admissible... to be discoverable.

12 Scope of Discovery (Rule 26) Proportionality Factors to Consider: - The amendment includes the following factors to consider: [1] the importance of the issues at stake in the case, [2] the amount in controversy, [3] the parties relative access to relevant information, [4] the parties resources, [5] the importance of the discovery in resolving the issues, and [6] whether the burden or expense of the proposed discovery outweighs its likely benefit. - These factors were already in Rule 26(b)(2)(C) with some slight modification but are now moved to the actual definition of the scope of discovery in Rule 26(b)(1).

13 Cost Allocation (Rule 26) Protective Orders: - Rule 26(c)(1)(B) - The Committee amended Rule 26(c) to recognize the court s authority to include an allocation of expenses in a protective order. - The Committee Note states that [r]ecognizing the authority does not imply that cost-shifting should become a common practice[,] [and] [c]ourts and parties should continue to assume that a responding party ordinarily bears the costs of responding.

14 Requests for Production (Rule 34) Responses/Objections: - Rule 34(b)(2)(B) and (C) - Rule 34(b)(2)(B) amended to require that the grounds for objecting to the request be stated with specificity. - Rule 34(b)(2)(C) amended to provide that [a]n objection must state whether any responsive materials are being withheld on the basis of that objection. - You cannot just generally object. - You must specify whether you are withholding anything based on your objection.

15 Requests for Production (Rule 34) Preexisting Duties Under Rule 26(b)(5) and Local Rule 26(e): - Before these rule changes, Rule 26(b)(5) already stated that [w]hen a party withholds information [under a claim of privilege or other protection]..., the party must: (i) expressly make the claim; and (ii) describe the nature of the [withheld information]... in a manner that... will enable other parties to assess the claim. - Further, our Local Rule 26(e) provides that [a] party withholding information claimed privileged or otherwise protected must submit a privilege log and lists detailed information about the document and claim that must be included in the privilege log. - So, the Federal Rules and our Local Rules already required specificity and that a responding party state whether any responsive materials are being withheld. - But under the changes to Rule 34, this information must be in your actual response to the request for production.

16 Requests for Production (Rule 34) Producing Copies and Specifying Time for Production: - Rule 34(b)(2)(B) was also amended to provide: The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. - This amendment simply recognizes the most common way documents and ESI are produced by producing copies, not inspection. - But the amendment further provides that [t]he production must... be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

17 Failure to Preserve ESI (Rule 37) - Former Rule 37(e) simply provided that absent exceptional circumstances, a court may not impose sanctions... for failing to provide ESI lost as a result of routine, good-faith operation of an electronic information system. - New Rule 37(e) authorizes and specifies measures the court may employ if ESI that should have been preserved is lost, and establishes the findings necessary to justify these measures. - The amendment became necessary, in part, due to some courts imposing sanctions for negligent and unintentional deletion of ESI

18 Failure to Preserve ESI (Rule 37) New Rule 37(e) provides: (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

19 Failure to Preserve ESI (Rule 37) - Under new Rule 37(e), the court must first determine whether the party failed to take reasonable steps to preserve the ESI - The Rule does not define reasonable steps - You can get some direction from the SEDONA CONFERENCE 2010 Commentary on Legal Holds: The Trigger and the Process particularly Guidelines 8, 9, and 10 - The Guidelines focus on reasonableness and good faith with recognition of proportionality

20 Preservation of ESI (Rule 37) - If the court finds that a party did not take reasonable steps, the next question is whether the lost information can be restored or replaced. - If it can, it appears that the inquiry under the Rule ends. - If it cannot and the court finds that the other party will be prejudiced due to the loss (and does not find intent to deprive the other party of the information), the court may impose measures no greater than necessary to cure the prejudice. - The sanctions in subsection (2) are only available if the court finds that the party intended to deprive the other party of the information. - In sum, the Rule focuses on solving the problem and authorizes sanctions only upon a finding of intent to deprive.

21 United States District Courts Northern District of Mississippi Southern District of Mississippi Mississippi Bar Convention July 2016

22 Made effective January 1, 1986 Govern all proceedings in the United States District Courts in Mississippi Apply to all pending civil actions except where injustice would result

23 Amended eleven times since 1986 Last amended: December 1, 2015 Attorneys practicing in the federal district courts in Mississippi are charged with knowing the Local Rules and may be sanctioned for failing to comply with them.

24 Local Rule 7(b)(2)(B): Other than discovery motions under Rule 37, a motion may not exceed four pages, excluding exhibits, may contain only the grounds for the request and may not contain legal argument or citations to case law or other secondary authority.

25 Local Rule 7(b)(3)(A): A response to a motion, all affidavits, 28 U.S.C declarations, the response memorandum and other supporting materials, including any objections, must be filed of record. Within the time allowed for response, the opposing party must either respond to the motion or notify the court of its intent not to respond.

26 Local Rule 7(b)(10): All non-dispositive motions must advise the court whether there is opposition to the motion.

27 Local Rule 7(b)(3)(C): A response to a motion may not include a counter-motion in the same document. Any motion must be an item docketed separately from a response.

28 Local Rule 7(b)(3)(D): A response to a motion may not be included in the body of a pleading, but rather should be a separately docketed item denominated in the record as a response and should be associated by docket number with the motion to which it responds.

29 Local Rule 7(b)(3)(E): If a party fails to respond to any motion, other than a dispositive motion, within the time allotted, the court may grant the motion as unopposed.

30 Local Rule 7(b)(4): At the time the motion is served, other than motions or applications that may be heard ex parte or those involving necessitous or urgent matters, counsel for movant must file a memorandum brief in support of the motion.

31 Local Rule 7(b)(4): Counsel for respondent must, within 14 days after service of movant s motion and memorandum brief, file a response and memorandum brief in support of the response. Counsel for movant desiring to file a rebuttal may do so within 7 days after the service of the respondent s response and memorandum brief.

32 Federal Rule of Civil Procedure 6(a) governs how time is computed. Federal Rule of Civil Procedure 6(d): When a party may or must act within a specified time after service and service is made by electronic filing, 3 days are added after the period would otherwise expire under Rule 6(a).

33 Local Rule 7(b)(4): A party must make any request for an extension of time in writing to the judge who will decide the motion. Failure to timely submit the required motion documents may result in the denial of the motion.

34 Local Rule 7(b)(5): Movant s original and rebuttal memorandum briefs together may not exceed a total of thirty-five pages, and respondent s memorandum brief may not exceed thirty-five pages.

35 Local Rule 15: A proposed amended pleading must be an exhibit to a motion for leave to file such pleading.

36 Local Rule 79 governs the sealing of records in Mississippi s federal courts

37 Local Rule 79(b): No document may be filed under seal, except upon entry of an order of the court either acting sua sponte or specifically granting a request to seal that document.

38 Local Rule 79(d): No document may be sealed merely by stipulation of the parties. A confidentiality order or protective order entered by the court to govern discovery will not qualify as an order to seal documents for purposes of this rule. Any document filed under seal in the absence of a court order to seal may be unsealed without prior notice to the parties.

39 Local Rule 79(e)(3): Any document filed with the intention of being sealed (which is not filed under seal pursuant to a statute, rule, or order) must be accompanied by a motion to seal. Any filing unaccompanied by a motion to seal will be treated as a public record.

40 Local Rule 79(e)(4): Any motion to seal must be accompanied by a non-confidential supporting memorandum, a notice that identifies the motion as a sealing motion, and a proposed order. A party may also submit a confidential memorandum for in camera review.

41 Local Rule 79(e)(4)(A)-(E): The non-confidential memorandum and the proposed order must (1) include non-confidential description of what is to be sealed, (2) state why sealing is necessary, (3) reference governing case law, (4) state time period for sealing and how sealed document is to be handled upon unsealing and (5) recite supportive findings required by case law.

42 Local Rule 5(d)(2): Immediately upon receipt of the original deposition, the party serving as custodian must file a copy of the cover sheet of the deposition and a notice that all parties of record have been notified of its receipt by the custodian [Official Form No. 2(a)].

43 Local Rule 38 addresses what is necessary to have a case designated as one to be tried by a jury. Local Rule 51 governs the submission of jury instructions. Local Rule 54 advises about potential costs associated with jury trials when a case is postponed, settled, or disposed of before trial and after the case is called for trial, as well as post-trial bill of costs.

44 Closing Remarks & Questions