The 2015 Amendments To The Federal Rules Of Civil Procedure: What You Need To Know

The 2015 Amendments to the Federal Rules of Civil Procedure have been years in the making and will finally take effect on December 1. The amendments include changes that redefine the scope of relevant discovery and provide for sanctions for failure to provide electronically stored information. The amendments also are intended to speed up the early stages of litigation. Here we provide a summary of what you need to know to stay on top of the changing landscape for federal practice.

WHEN DO THE AMENDMENTS GO INTO EFFECT?

The amendments take effect on December 1, 2015.1

WHAT CASES FALL UNDER THE REVISED RULES?

The amendments apply to all proceedings commenced after December 1, 2015, as well as all proceedings then pending "insofar as just and practicable."

WHICH RULES ARE AMENDED?

The amendments affect Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55 and 84.

WHAT ARE THE CHANGES?

1. SCOPE OF DISCOVERY

   Arguably, the changes that have generated the most buzz in the legal community are to the scope of discovery under Rule 26(b). The new Rule 26(b)(1) language is quite different from the former Rule:

   OLD RULE 26(B)

   (1) Scope in General. Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C)

   (2) Limitations on Frequency and Extent. . . .

   (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: . . .

   (iii) the burden or expense of proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

   NEW RULE 26(B) (CHANGES IN BOLD)

   (1) Scope in General. Parties may obtain discovery regarding any nonprivileged 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.

   (2) Limitations on Frequency and Extent. . . .

   (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: . . .

   (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

   SEVERAL KEY CHANGES ARE IMMEDIATELY APPARENT:

   ADDITION OF PROPORTIONALITY The Amendment restores proportionality as an express component to Rule 26's scope of discovery. The factors that were previously to be considered on a motion to limit to discovery under Rule 26(b)(2)(C) are now part of the proportionality inquiry under Rule 26(b)(1). Parallel changes are made in Rules 31, 31 and 33 to reflect Rule 26(b)(1)'s recognition of proportionality.

   DELETION OF "DESCRIPTION, NATURE," ETC. The new rule deletes the provision for discovery of "the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." The Committee Note explains that the deletion is not meant to remove those items from the realm of discovery, but rather "[d]iscovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long test of Rule 26 with these examples."

   DELETION OF "RELEVANT TO THE SUBJECT MATTER" The Amendment removes the prior language authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter of the...