New Amendments to the FRCP Birmingham Bench and Bar Conference March 2016
Overview The Process of Rule Making The 1983/1993/2000 Amendments The 2006 Amendments The High Points of the 2015 Amendments Four year effort Most commented-upon rules changes ever Electronic media
Cooperation Judicial Involvement Reducing Delay Proportionality Reduce Over-discovery
Cooperation Rule 1 - These rules should be construed, administered and employed by the court and parties to secure the just, speedy, and inexpensive determination of every action and proceeding
An emphasis on cooperation Effective advocacy is consistent with - and indeed depends upon cooperative and proportional use of procedure. (Committee Note) Not intended as a new basis for sanctions.
Service of Process Rule 4(m) - Timing of service reduced from 120 days to 90. Intended to reduce the delay at the beginning of litigation.
The Scheduling Conference Rule 16(b)(1) Committee note The provision for consulting at a scheduling conference by telephone, mail or other means is deleted. A scheduling conference is more effective if the court and parties engage in direct simultaneous communication. The conference may be held in person, by telephone or by more sophisticated electronic means. Intended to avoid the use of mail.
The Scheduling Order Rule 16(b)(2) Absent good cause for delay, Court to issue the order within 90 days of service or 60 days of an appearance down from 120 and 90 Substantive Additions to Rule 16(b)(3)(B) contents of the scheduling order may
(iii) provide for the disclosure, discovery, or preservation of ESI Important if parties cannot reach an agreement before the parties planning meeting Does not change duty to preserve earlier
(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after the information is produced including agreements reached under Federal Rule of Evidence 502 (v) direct that before moving for an order relating to discovery, the movant must request a conference with the court
Rule 502 the claw back issue (d) A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court in which event, the disclosure is not a waiver in any other federal or state proceeding.
(e) an agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. You will want nationwide and state court effect
Scope of Discovery Rule 26(b)(1) - the scope of discovery is as follows: parties may obtain discovery regarding any non-privileged matter that is 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Intended to improve the existing rules. Parties and the court have a collective responsibility to consider proportionality. A re-arranged and slightly modified list of the current proportionality factors from Rule 26(b)(2)(C)(iii). Boilerplate objections are not sufficient. Encourages judges to be more aggressive in identifying and discouraging discovery overuse.
The Major Changes to 26(b)(1) Elimination of subject matter discovery Elimination of the language Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence; now provides that [i]nformation need not be admissible in evidence to be discoverable Changing scope to include the proportionality rule (which has been around since 1983)
Proportionality Factors The importance of the issues at stake in the litigation. The amount in controversy. The parties resources. The importance of the discovery in resolving the issues. Whether the burden or expense of the proposed discovery outweighs its likely benefit.
Proportionality - Generally Macro Proportionality versus Micro Proportionality Concepts of core discovery Phased discovery Comments encourage use of technology assisted review (TAR) or predictive coding to address concerns about costs in large cases
Protective Orders Rule 26(c)(1)(B) - A protective order may specify terms, including time and place or allocation of expenses, for the disclosure of information Change was a result of a move for a requester party pays rule. Result was that cost-shifting was given a more prominent feature of Rule 26(c)
Rule 26(f) Adds to the matters that must be stated in the discovery plan any issues about preservation and whether the parties want the court to include a Rule 502 agreement in an order.
Early Rule 34 requests for production of documents Rule 34 requests may now be delivered to a party more than 21 days after the summons and complaint are served The request is considered to have been served at the first Rule 26(f) conference
Rule 34 Responses and Objections Respond by produc[ing] copies of documents or of [ESI] instead of permitting inspection Production must be in the time specified in the request or another reasonable time specified in the response If you are going to object to production, the new rule requires you to state with specificity the grounds for objection to the request, including the reasons
The Rule further states: If objection is overbroad, if some is appropriate, the objection should state what part is overbroad An objection must state whether any responsive materials are being withheld on the basis of that objection Also adds failure to produce as grounds for a motion to compel
The Sanction Rule - Failure to Preserve ESI Rule 37(e) - 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 replaced through additional discovery, the court:
(1) Upon finding prejudice to another party from the 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 (Zubulake ( culpable state of mind )) 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
Overall Comments Equitable focus is on solving the problem, not punishing the malefactor unless the loss is intentional Uniform national standard in severe cases requiring intent to deprive party of evidence to impose severe measures
The Questions Was there a duty to preserve at the time of the loss? Was there ESI lost that should have been preserved? Was the ESI lost because a party failed to take reasonable steps to preserve it? Did the party fail to take those steps? Committee note a factor in evaluating reasonableness of preservation efforts is proportionality. Perfection is not required.
If the ESI was lost because a party failed to take reasonable steps to preserve it, can it be restored or replaced through additional discovery? If it cannot be restored or replaced through additional discovery, does the loss prejudice another party? What measures are the minimum necessary steps to cure the prejudice? Akin to least-severe-sanction under Rule 11(c)(4)
The burden of showing prejudice is not intended to be onerous It is satisfied by a showing that the destroyed information was relevant under FRE 401 and that it would have been favorable to the party requesting it. [I]mpairs the ability to go to trial or threatens to interfere with the rightful decision of the case. (Burton v. Walgreen Co., 2015 WL 4228854 (D. Nev. July 10, 2015).
If the court finds that there was prejudice, it may order case-specific remedial measures no greater than necessary to cure the prejudice Much is entrusted to the court s discretion. Committee Note 44.
Committee Note Potential Remedial Action Includes Forbidding the party that failed to preserve the evidence from putting on certain evidence or excluding specific evidence to offset prejudice Permitting evidence and argument to the jury about the loss of information Giving the jury instructions to assist in the evaluation of such evidence or argument
The court, as a remedy for the loss, may also presume prejudice, give an adverse inference instruction or dismiss an action or enter default judgment These actions may be taken only if the court finds that the party acted with an intent to deprive another party of the information s use in the litigation.
Depositions, Interrogatories and Requests for admissions (Rules 30, 31, & 36) Fierce discussions regarding limitations Ultimately rejected Only change concerning depositions and interrogatories is a reference to the proportionality factors in Rule 26(b)(1) in each
Forms Rule 84 and Appendix of Forms Will be abrogated Some forms will be integrated into Rule 4(d) To quote the Committee, it is time to get out of the forms business Alternative sources available
Some Final Thoughts Early Intervention Case Management Cooperation
Special Thanks & Notes Judge John L. Carroll, Professor of Law Cumberland School of Law The Anti-Plaintiff Pending Amendments, Patricia W. Hatamyar, 83 U. Cin. L. Rev. 1083 (Summer 2015) Sedona Conference Journal, Fall 2015 The 2015 Civil Rules Package as Transmitted to Congress, Thomas Y. Alllman The Burdens of Applying Proportionality, Hon. Craig B. Shaffer
A Practical Guide to Achieving Proportionality Under New Federal Rule of Civil Procedure 26, Hon. Elizabeth D. Laporte and Jonathan M. Redgrave, The Federal Courts Law Review, Vol. 9, Issue 2 (2015) Digging Through the New Federal Rules of Civil Procedure, Law360.pdf (11/12/2015)