• Shifting to a Higher Gear: The New Federal Rules and What You Need to Know
  • December 7, 2015 | Authors: Joshua A. Norris; Brett Robert Sheneman; Amy L. Vazquez
  • Law Firm: Jones Walker LLP - Houston Office
  • In April 2015, the Supreme Court of the United States approved and submitted to Congress proposed amendments to the Federal Rules of Civil Procedure (the "Amendments"). From an aggregate perspective, these Amendments are engineered to speed things up a bit and focus primarily on early case management, the scope of discovery, and Electronically Stored Information ("ESI"). The Amendments take effect on December 1, 2015. Here is what you need to know:

    "Proportionality" is the New Standard Scope of Discovery
    The scope of discovery is now "proportional to the needs of the case" under Rule 26(b)(1). Gone is the mantra that we can ask for anything in discovery that is "reasonably calculated to lead to the discovery of admissible evidence;" rather, the Amendment to Rule 26 now forces us to consider "proportionality" in making discovery requests, responding, and/or objecting to discovery. In the same vein, the Amendments also provide an additional proportionality factor under Rule 26(c)(1)(B) to include the "parties' relative access to relevant information" and cost-shifting mechanisms under Rule 26(c)(1)(B) to allow the Court to determine the "allocation of expenses" for discovery. Rules 30, 31, and 33 regulating depositions and interrogatories incorporate Rule 26(b)(1)'s emphasis on proportionality as well.

    We actually had to consider proportionality in discovery before the Amendments, but now the notion is front and center. Parties may obtain discovery relevant to any party's claims 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 the 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 benefits. The intended effect is to encourage judges to be more aggressive in identifying and discouraging discovery overuse.

    Expect Early and Active Case Management
    The Amendments to Rules 1, 4, 16, and 26 are intended to improve cooperation amongst the parties and reduce delay early on in the case. You can also expect reduced timelines and more active judicial case management. The substance of specific Amendments is noted below:
    • RULE 1 - the parties and the court are now obligated to ensure litigation is efficient;
    • RULE 4(M) - if you are the Plaintiff, the presumptive time to serve a Defendant is now 90 days instead of 120 days;
    • RULE 16(B)(1) - broadens accessibility for scheduling conferences. Courts can now hold scheduling conferences in person, by phone, or "by more sophisticated electronic means;"
    • RULE 16(B)(2) - reduces the time for issuing a scheduling order from 120 days to 90 days if Defendants have been served and from 90 days to 60 days if any Defendant has appeared;
    • RULE 16(B)(3) - a Court's scheduling order can now require a court conference before any party moves for a discovery order. Perhaps more importantly, this Amendment adds that a scheduling order can now require the preservation of ESI. Records Custodians and document retention policies be advised;
    • RULE 26(F)(3) - again relates to ESI. Parties' discovery plans must now incorporate the parties' proposals to preserve ESI. Have your document retention policies at the ready and custodians on stand-by.
    Let's Get Productive - Changes to the Rules Regulating Requests for Production
    The Amendments will tweak the timing of RFPs as well as the substance and timing of Responses to RFPs. Here is what you need to know:
    • RULE 26(D)(2) - a party can now serve RFPs prior to the Rule 26(f) Conference; however, take note on the timing of serving pre-26(f) Conference RFPs. Particularly:
    1. A party cannot serve them until 21 days after the receiving party was served in the lawsuit;
    2. If a party serves pre-26(f) Conference RFPs, the RFPs will be considered as served at the first Rule 26(f) Conference; and
    3. If RFPs were delivered under Rule 26(d)(2), the deadline to respond is within 30 days after first Rule 26(f) Conference.
    • RULE 34(B)(2) - this is a big one, because responding parties now have to be more specific with their responses. So, let's get specific - the Amendments require the responding party to:
    1. Be more specific with its objections to RFPs. Most of you are probably correct to assume we will probably get some case law clarifying the specificity of responses rather quickly;
    2. State whether any documents were withheld under each objection. As a practical note, this does not need to be a detailed description or log of documents withheld, but should notify parties to the fact that documents have been withheld. The intent is to facilitate an informed discussion of the objection;
    3. State whether they will produce copies or permit inspection; and
    4. Complete production (i) no later than the time specified in the RFP itself or (ii) a different, reasonable time specified in the Response to the RFP.
    • RULE 37(A)(3)(B)(IV) - This falls under your typical motion to compel a Discovery Response. The Amendments have gotten with the times and are cognizant of the fact that common practice is to produce documents or ESI rather than allowing inspection. This specific Amendment now allows a party to move to compel production if another party fails to produce documents.
    Taking Timely and "Reasonable Steps" to Preserving ESI is Your New Best Friend
    Under the new Rule 37(e), the Amendments give Courts broad discretion to cure prejudice caused by loss of ESI and clarify when sanctions for failure to preserve it are appropriate. Consider Rule 37(e) as a guidepost for your duty to preserve ESI and note the safe harbor provision referencing "reasonable steps" of preservation. A party moving for sanctions has to meet the predicate of the new rule and show:
    1. ESI that "should have been preserved in the anticipation or conduct of litigation is lost,"
    2. "[B]ecause a party failed to make reasonable steps to preserve it," and
    3. Information cannot be restored or replaced through additional discovery (i.e. it is lost).
    The Amendments' broad stroke of "proportionality" is again brought to fruition here. Whether information can be restored or replaced should be emphasized and should be proportional to the apparent importance of the case.

    As to the Safe Harbor provision, the Court may look to various factors relating to the reasonable steps taken to preserve ESI. Some of these factors include a party's:
    1. Sophistication with regard to the litigation in evaluating preservation efforts;
    2. Control over the information;
    3. Knowledge of the information and risks of losing the same (i.e. due to a virus/software attack on system); and
    4. Resources (costs, staff, etc.);
    Not much has changed in that we should be familiar with our clients' information system to address discovery and spoliation issues. However, proportionality and reasonableness are now two considerations that are inseparably linked to our understanding of these systems and advice on these issues.

    The sanctions available to a Court are now streamlined with the special treatment Rule 37(e) now gives to ESI. If a party is successful in meeting these elements, the Court has a couple of options, none of which are good for the spoliating/non-preserving party:
    1. Upon finding prejudice to another party from a loss of the information, a Court may order "measures no greater than necessary to cure the prejudice," OR
    2. If a party "acted with the intent to deprive another party's use of the information" in the litigation, a Court may impose more severe sanctions, including but not limited to (i) presuming that the lost information was unfavorable to the party, (ii) a spoliation instruction that the jury may or must presume the information was unfavorable to the party, or (iii) dismiss the action or enter a default judgment