A BETTER WAY TO LITIGATE? – The December 1, 2015 Amendments To The Federal Rules Of Civil Procedure Aim For More Efficiency And Less Delay

Civil litigation can sometimes be less than civil or efficient. Indeed, some parties have been found to engage in "abusive" discovery practices or dilatory tactics intended to prolong and increase the costs of litigation. This has not gone unnoticed by courts, parties, and commentators, including the Advisory Committee on Rules of Civil Procedure (the "Committee"). In August 2013, the Committee proposed amendments to the Federal Rules of Civil Procedure ("the Rules") aimed at curbing certain abusive practices, amongst other things. The amendments include changes to Rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37, and would impact numerous aspects of litigation including service of process, discovery (including electronically stored information ("ESI")), default judgments, and possibly pleadings requirements. See http://www.chamberlitigation.com/2013-proposed-amendments-federal-rules-civil-procedure. On April 29, 2015—after nearly two years of extensive revisions, over 2,000 comments, and testimony from more than 100 people—Chief Justice Roberts, on behalf of the Supreme Court, submitted the proposed amendments to Congress. See http://www.supremecourt.gov/orders/courtorders/frcv15_5h25.pdf; see also http://www.uscourts.gov/file/18481/download (showing proposed changes).

Absent an act of Congress, these amendments will take effect on December 1, 2015. They would apply to any future litigation, but could also have retroactive effect to litigation already pending:

ORDERED * * *

That the foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 2015, and shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending. [Emphasis added]. Facilitating Party Cooperation:

From the outset, the amendments are intended to foster better cooperation among litigants. As amended, Rule 1 will now require parties to construe, administer, and employ the Rules in a manner "to secure the just, speedy, and inexpensive determination of every action and proceeding." Previously, Rule 1 only applied to courts. This change may seem innocuous. However, the Committee felt it necessary to "emphasize" that efficient litigation is the responsibility of every partynot just the courts. According to the Committee's comments, the amendment is intended to "improve the administration of civil justice" and "discourage over-use, misuse, and abuse of procedural tools that...