• Amendments to Federal Rules of Civil Procedure go into effect on December 1, 2015
  • January 6, 2016 | Author: David L. Schwalm
  • Law Firm: Thomas, Thomas & Hafer LLP - Harrisburg Office
  • In an effort to expedite the litigation and discovery process, the United States Supreme Court has approved significant amendments effective December 1, 2015. These changes are designed to accelerate litigation and are expected to alter significantly how parties conduct discovery.

    Rule 4 reduces the length of time to serve a complaint from 120 days to 90 days. This change will impact plaintiffs.

    Rule 16 shortens the time within which the court must issue a scheduling order from 120 days to 90 days after service of a complaint or 60 days from any defendant entering an appearance. The Rule also requires that the conference be held in person, by phone or videoconferencing.

    In addition, the Rule mandates that counsel request a conference with the court to address discovery issues before filing a motion. This procedure is already implemented by local rules in most district courts or by individual judge’s practice procedures.

    Rule 26(b)(1) significantly alters the rule for determining whether discovery sought is permissible. This change likely will result in increased discovery disputes until the courts interpret its application. The Rule requires that discovery be “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.” This change requires parties to weigh these factors when they seek discovery, and the court to balance the potential value of the discovery against the cost of production. Properly implemented, the new rule is expected to reduce the burden on businesses, government entities, and insured defendants to produce information, particularly in lower value cases. And, this change may limit fishing expeditions into information not related, or only marginally related, to the claims asserted.

    Rule 26(d) permits the delivery of Rule 34 (document) requests 21 days after the service of the complaint, but provides that such requests are not considered served until the Rule 16 case management conference. The reason for amendment is to focus discussion of discovery and claims at the Rule 16 conference.

    Rule 34(b)(2)(B)-(C) makes an important change to discovery practice. First, an objection to a request must state “with specificity the grounds for objecting.” Vague responses to a request for production will not be allowed. Second, if a party responds that it will produce documents in the future, then the party must produce them within the time for inspection or set forth “another reasonable time” within which the materials will be produced. Parties can no longer only state that documents will be produced in the future.

    The amendment to Rule 37(e) essentially incorporates the common law duty setting penalties for failure to preserve electronically stored information into the federal rules. Important language in the rule is that a penalty may be “no greater than necessary to cure the prejudice.” Furthermore, certain penalties can be imposed only if “the party acted with the intent to deprive another party of the information’s use in the litigation.” As indicated, significant case law already addresses these issues and should not substantially affect discovery of electronically stored information.