WEBINAR February 11, 2016

Transcription

1 WEBINAR February 11, 2016 Looking Forward and Back: How the Amendments to the Federal Rules of Civil Procedure Are Impacting New and Pre-Existing Lawsuits SPEAKERS: Gray T. Culbreath, Esq. Gallivan, White & Boyd P.A., Columbia, SC G. David Godwin, Esq. Carroll Burdick & McDonough LLP, San Francisco, CA Debra Varner, Esq. McNeer Highland McMunn & Varner, Clarksburg, WV 1

2 I. HOW DO THE AMENDED RULES APPLY TO CASES PENDING AT THE TIME THE RULES WENT INTO EFFECT

3 Supreme Court s April 2015 Transmittal Order States: The new rules shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending

4 Operative Term Just and Practicable See Matthew v. Chrysler, 2015 WL (N.D. Cal. December 10, 2015) (addressing proportionality)

5 For Example If the parties briefed the motion and conducted oral argument under the prior rule, it is not just and practicable to apply the amended rules retroactively. Trowery v. O Shea, 2015 WL (D. N.J. December 30, 2015)

6 Application of the New Rules to Cases Pending at the Time the Amendments Were Enacted: Cat 3, LLC v. Black Lineage, Inc., 2016 WL (January 12, 2016) - Notes amendments mandate substantial changes in civil practice - Cites to 28 USC 2074(a) which provides:

7 The Supreme Court may fix the extent to which such rule [of procedure or evidence] shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies.

8 Cat 3,LLC Court Holds: Both the Supreme Court Order and the governing statute create a presumption that a new rule governs pending proceedings unless its application would be unjust or impracticable. Here, because the amendment is in some respects more lenient as to the sanctions that can be imposed for violation of the preservation obligation, there is no inequity in applying it.

9 Kissing Camels Surgery Center, LLC v. Centure Health Corp., 2016 WL (January 22, 2016) Applies the amendments to a then pending case Because this court concludes that these SC obligations (dealing with the specificity of objections) were attendant on Parties before the amendments to the Rules.

10 Nuvasive, Inc. v. Madsen Medical, Inc., 2016 WL (January 26, 2016) Generally a new procedural rule applies to the uncompleted portions of suits pending when the rule because effective. Defendants argued that it was neither just nor practicable to apply the new rule.

11 Arguments in Favor of Applying the Amendments - Just and Practicable Pursuant to Supreme Court Order - When amendments to the FRCP do not affect the substance of the rules, the amended rules are easily applied to pending civil matters. See, e.g. Lorillard Tobacco Co. v. Engida, 611 F3d 1209 (10 th Cir. 2010); United States v. Sam, 73 Fed. Appx. 335 (10 th Cir. 2003); Espinoza v. United States, 52 F3d. 838 (10 th Cir. 1995).

12 II. Production Requests & Objections Under Amended Rule 34

13 Production Requests Under Amended Rule 34 Allows any party to deliver Rule 34 requests more than 21 days after that party has been served (even if no Rule 26(f) conference has yet occurred). Requests are not considered served until the Rule 26(f) conference is held. Responses to Rule 34 requests delivered prior to the Rule 26(f) conference due 30 days after the Rule 26(f) conference.

14 Rule 34 Objections Require Specificity Rule 34(b)(2)(B) now requires that an objection to a discovery request must state an objection with specificity the grounds for objecting to the request, including the reasons. The Committee Note explains that if the objection [such as over-breadth] recognizes that some part of the request is appropriate, the objection should state the scope that is not [objectionable].

15 Boilerplate objections to Rule 34 requests are not sufficient. Vague and Ambiguous Unduly Burdensome Not Proportional

16 Exemplar Objection Under Rule 34 An acceptable example is an objection that states that the party will limit its search to information created within a given period of time or to specified sources.

17 Does Failure to Comply = Waiver? Does failure to object with specificity constitute a waiver of the objection? [W]aiver is not the appropriate remedy. Del Socorro Quintero Perez v. United States, 2016 WL (S.D.Cal. Jan. 25, 2016). Rather, the court may: Require the responding party to support its objections and if, after a review of the merits of each objection, the court determines many to be unfounded, the court can overrule those objections; Impose sanctions under Fed. R. Civ. P. 26(g); Impose sanctions under Federal Rule 37(a)(5), which requires the party, the attorney, or both, to pay the movant's reasonable expenses incurred in making the motion [to compel], including attorney's fees.

18 Do Objections to Subpoenas Require Specificity? Does Rule 34(b)(2)(B) s specificity requirement apply to responses to a Rule 45 subpoena? Answer: Yes. [A] non-party's Rule 45(d)(2)(B) objections to those requests should be subject to the same requirements facing a party objecting to discovery under Rule 34. That is, a non-party's Rule 45(d)(2)(B) objections to discovery requests in a subpoena are subject to the same prohibition on general or boiler-plate objections and requirements that the objections must be made with specificity and that the responding party must explain and support its objections. American Federation of Musicians of the United States and Canada v. Skodam Films, LLC, 2015 WL (N.D. Tex. Dec. 3, 2015).

19 Timing of Productions Under Rule 34 Rule 34(b)(2)(B) also requires that if production (as opposed to inspection) is elected, it must be completed no later than the time specified in the request or another reasonable time specified in the response. If the production is made in stages, the response should specify the beginning and end dates of the production.

20 Identifying What Is Withheld Under Rule 34 Rule 34(b)(2)(C) is amended to require that any such objection must state whether any responsive materials are being withheld on the basis of that objection. This new language continues to be followed by the requirement that [a]n objection to part of a request must specify the part and permit inspection of the rest.

21 Identifying What Is Withheld Under Rule 34 The Committee Note states that a producing party does not need to provide a detailed description or log of all documents withheld, but should alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection. This is intended to end the confusion when a producing party states several objections but still produces some information.

22 Exemplar Response Do responses that specify the scope of the search undertaken comply with the requirement to disclose that materials have been withheld? Answer: Yes. The amended Note includes the statement that an objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been withheld.

23 III. Recent Case Law Applying the Amendments 23

24 State Farm Mutual Automobile Ins. Co. v. Fayda, 2015 WL (S.D.N.Y. Dec. 3, 2015) No party has argued that the application of the amended rules to this dispute is unfair or impracticable, and I find no reason that they should not be applied to this dispute. 24

25 State Farm Mutual Automobile Ins. Co. v. Fayda, 2015 WL (S.D.N.Y. Dec. 3, 2015) The amended rule is intended to encourage judges to be more aggressive in identifying and discouraging discovery overuse by emphasizing the need to analyze proportionality before ordering production of relevant information. Fed. R. Civ. P. 26(b)(1) advisory committee's notes to 2015 amendment. 25

26 State Farm Mutual Automobile Ins. Co. v. Fayda, 2015 WL (S.D.N.Y. Dec. 3, 2015) They have failed to rebut State Farm's showing that the financial records are relevant and material to its case against them. Nor have they established that the plaintiff has an alternative source for the information or that producing it would be particularly burdensome. See Fed. R. Civ. P. 26(b) (1) advisory committee's notes to 2015 amendment (noting that the [2015 amendments] do[ ] not place on the party seeking discovery the burden of addressing all proportionality considerations because, for example, a party requesting discovery... may have little information about the burden or expense of responding ) Therefore, their proportionality argument fails. 26

27 In Re: Blue Cross Blue Shield Antitrust Litigation (MDL No.: 2406) (N.D. Al., Dec. 9, 2015) Thus, contrary to BCBS-MI s assertion, the scope of discovery is not limited simply to facts, but may entail other matters that remain relevant to a party s claims or defenses, even if not strictly fact-based. Here, expert reports and depositions from the Aetna litigation relate conceivably to other incidents of the same type as alleged in the most-favored-nation-clause claims in this action. Proportional discovery relevant to any party s claim or defense suffices, given a proper understanding of what is relevant to a claim or defense. 27

28 Siriano v. Goodman Manufacturing Co., L.P., (S.D. Ohio, Dec. 9, 2015) Restoring proportionality is the touchstone of revised Rule 26(b)(1)'s scope of discovery provisions. The Sixth Circuit, however, has held that limiting the scope of discovery is appropriate when compliance would prove unduly burdensome, not merely expensive or time consuming. Surles, 474 F.3d at

29 Revised Rule 26(b)( 2)(B) retains the undue burden or cost standard for imposing limitations on discovery of ESI. Fed. R. Civ. P. 26(b)(2)(B) (emphasis added). Defendants have not proposed alternative methods of discovery enabling some lesser degree of production, such as limiting the search to certain offices or files. 29

30 The amendments to the Federal Rules of Procedure also contemplate active judicial case management. To that end, the Court will schedule a discovery conference with the parties to discuss whether and to what extent discovery should proceed in phases. 30

31 Steuben Foods, Inc. v. Oystar Group, 2015 WL (W.D.N.Y., Dec. 21, 2015) As amended, Rule 1 provides that the Rules [s]hould be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way... Effective advocacy is consistent with- and indeed depends upon cooperative and proportional use of procedure. Rule 1 Advisory Committee Notes, 2015 Amendment. 31

32 William Michael Webb v. Tahsin Ind. Corp., U.S.A., (M.D. Pa, February 5, 2016) 2016 WL The Court would also point out that such a request to forestall the litigation and place it on hiatus until a new expert is found and Defendant can become reoriented flatly contradicts amended Federal Rule of Civil Procedure 1. Rule 1 now mandates that the federal rules be employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. Thus, according to the Advisory Committee Notes, [e]ffective advocacy is consistent with and indeed depends upon cooperative and proportional use of procedure. 32