Significant Changes To The Federal Rules Of Civil Procedure Expected To Take Effect December 1, 2015: Practical Implications And What Litigators Need To Know

On April 29, 2015, the U.S. Supreme Court approved and submitted to Congress proposed amendments to the Federal Rules of Civil Procedure ("FRCP" or "Rules") ("April 2015 Rules").1 The April 2015 Rules will take effect on December 1, 2015, unless Congress enacts legislation to reject, modify, or defer the rules. Any such action is highly unlikely. The amendments, which arguably entail the most significant alterations to the discovery rules in more than two decades, will "govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending."2 The April 2015 Rules amend Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55, and abrogate Rule 84 and the Appendix of Forms.3

In March 2014, Jones Day published a White Paper titled "Proposed Changes to the Federal Rules of Civil Procedure," which addressed the proposed Rules amendments published for public comment in August 2013 ("August 2013 Rules").4 At that time, the Judicial Conference's Rules Committee (the "Committee") received over 2,300 comments and held three public hearings where more than 120 witnesses provided testimony. 5 Since that White Paper, the Committee revised the proposed amendments, and the Standing Committee unanimously approved the April 2015 Rules on May 29, 2014. On April 29, 2015, the U.S. Supreme Court also approved the amendments in their entirety and submitted them to Congress for final approval.6

This White Paper provides an overview of the proposed amendments, including how the amendments evolved between August 2013 and April 2015, and discusses the practical implications the April 2015 Rules will have on early case management, discovery, and litigation strategy.

OVERVIEW OF THE PROPOSED APRIL 2015 RULES

In an effort to achieve the overarching goal of the FRCP "to secure the just, speedy, and inexpensive determination of every action and proceeding,"7 at a high level the amendments submitted to Congress in April 2015 address early case management and the overall scope of discovery.

The changes to early case management expedite the initial stages of litigation. The amendments that impact the scope of discovery emphasize proportionality and reasonableness and force more specificity in responding and objecting to document requests, including identifying the basis on which documents are being withheld and when a party anticipates completing production. In many respects, the discovery amendments conform the Rules to the current best practices of many courts and parties.

The amendments also for the first time directly address preservation, aiming to resolve jurisdictional differences and standardize practices, specifically the sanctions for spoliation of electronically stored information ("ESI").

Significantly, the amended Rules are intended to help return the focus of discovery to its rightful place: the merits of the claims and defenses in the litigation. The amendments related to discovery focus almost entirely on document discovery, which is often the most burdensome and expensive part of the discovery process. If properly applied by the courts and leveraged by litigants, the April 2015 Rules should reduce document discovery burdens and costs.

EARLY CASE MANAGEMENT

Scheduling and Cooperation—Amendments to Rules 1, 4(m), 16(b), and 26(f)

Several amendments aim to reduce delay and improve cooperation in early case management. Rule 1 seeks to make it clear that the parties have an obligation to make litigation efficient, adding that the Rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding."8 Specifically, the Committee Note to Rule 1 states:

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 .... [D]iscussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure.9

The amendments to Rules 4(m), 16, and 26(f) seek to reduce delay in the early stages of litigation through more active judicial case management and reduced timelines in six distinct ways. First, Rule 4(m) reduces the presumptive time to serve a defendant from 120 to 90 days.10 The August 2013 Rules included a 60-day deadline to serve a defendant. The change to 90 days in the April 2015 Rules reflects a compromise between the Committee's desire to shorten the period and commentators' concerns that 60 days would be problematic in cases involving multiple defendants, defendants who are difficult to locate, or defendants who must be served by the U.S. Marshals Service.11

Second, the Committee Notes to Rule 16(b)(1) encourage that courts hold a scheduling conference that involves "direct simultaneous communication" between parties and that "may be held in person, by telephone, or by more sophisticated electronic means."12 Third, Rule 16(b)(2) reduces the time to issue a scheduling order to the earlier of 90 days (down from 120 days) after any defendant has been served, or 60 days (down from 90 days) after any defendant has appeared, unless the judge finds good cause for delay.13 Fourth, Rule 16(b)(3) permits the scheduling order to require a conference with the court before a party may move for a discovery order.14

Fifth, Rule 16(b)(3) adds that the scheduling order may provide for preservation of ESI and for any agreements the parties reached under Federal Rule of Evidence 502, which governs attorney-client privilege and work product.15 Finally, in accordance with Rule 16, Rule 26(f)(3) requires the parties' discovery plan to state the parties' views and proposals on issues about preservation of ESI and include court orders under Rule of Evidence 502.16

Practical Implications of These Amendments

The new language in Rule 1 (i.e., "and employed by the court and the parties") will impose a standard on all parties involved to construe the Rules as providing a means for the "just, speedy, and inexpensive determination of every action and proceeding." To adhere to Rule 1 and decrease litigation costs, parties should reduce "hyperadversary behavior."17 Parties should instead balance cooperation with legitimate or essential adversarial behavior—in other words, effective and efficient advocacy.

The reduced time for entry of a scheduling order and discovery conference will enable the parties to set the tone and expectations at the beginning of litigation with less delay and time-consuming posturing. Parties should consider whether they would like the scheduling order to require that parties request a conference with the court prior to filing discovery motions. If so, they should request that the court include it in the scheduling order. If not, they should be prepared to respond to such a request by the opposing party. Many courts have found that holding a brief discovery conference resolves issues with less time and expense because it helps the court and parties to identify and promptly address actual or potential disputes.

To make the most of the scheduling conference, a party should plan ahead, anticipate delays and disputes, and consider what deadlines will be practical in light of any constraints, such as client preferences or the location, format, and accessibility of documents to be preserved. Document preservation obligations, which can be extremely burdensome and costly, frequently arise prior to the commencement of the action and, in any event, are ongoing at the time of the scheduling conference. These amendments provide an opportunity to expedite the resolution of those burdens and costs.

In addition, parties can benefit from early planning regarding the scope of protection that will be provided to inadvertently produced privileged information, which can impact the cost-benefit analysis with respect to subsequent document discovery options. Teeing these issues up early, rather than leaving them to linger where one (or both) parties do not act affirmatively, can negate unnecessarily costly preservation and/or document review and avoid high-priced disputes down the road.

PROPORTIONALITY

Scope of Discovery—Amendments to Rule 26

The key change to Rule 26 replaces language that is often used to argue that the scope of discovery should be broad, including "reasonably calculated to lead to the discovery of admissible evidence," with the language "and proportional to the needs of the case."18 Rule 26(b)(1) now makes proportionality considerations part of the definition of the scope of discovery and reinforces parties' obligations to consider proportionality in making...