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Federal Practitioners- The Amendments to the Federal Rules of Civil Procedure & The Impact on Discovery

On December 1, 2015, the Amendments to the Federal Rules of Civil Procedure went into effect. These changes will impact several areas of Federal civil practice, including, discovery and discovery related to electronically stored information “ESI”. The amendments apply to pending cases, as well as newly-filed cases. Below are a few of the changes which will impact the discovery process:

Rule 1: Scope and Purpose- This Rule requires parties and courts to construe, administer and employ the Rules for the purpose of securing “the just, speedy, and inexpensive determination of every action and proceeding.” This is a common theme reiterated throughout the Amendments to the Federal Rules.

Rule 16: The changes to Rule 16 impacts scheduling orders. A scheduling order is a court order designed to manage the flow of a case from the date it is entered through the beginning of trial.  Unless good cause is shown, the amendments reduce the time to enter scheduling orders to the earlier of 90 days (previously 120 days) after any defendant has been served or 60 days (previously 90 days) after any defendant has made an appearance. Scheduling orders may include preservation provisions, clawback agreements (under Federal Rule of Evidence 502) and direct parties to request a conference with the court before filing discovery motions.

Rule 26(b)(1): Perhaps the most profound change to the Federal Rules of Civil Procedure is the change in the scope of discovery. The New Rule provides that “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claims or defense and proportional to the needs of the case. . . .” This Amendment replaces the former definition of the scope of discovery: “[r]elevant information need not be admissible . . . if the discovery appears reasonably calculated to lead to the discovery of admissible evidence” with “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” The Committee notes that a party may not “refuse discovery simply by making a boilerplate objection that it is not proportional.” See Rule 34, below, for further explanation.

Rules 26(d)(2) and 34(b)(2)(A): Early requests for production –prior to the Rule 26(f) conference- may be served. However, the responding party has 30 days after the first Rule 26(f) conference to respond instead of the typical 30 days after service of the requests.

Rule 26(c)(1)(B): Protective orders may shift the cost of discovery. The Committee notes this change does not “imply that cost-shifting should become a common practice.” Parties should assume the “responding party ordinarily bears the costs of responding.”

Rule 26 (f)(3) Discovery Conference: A discovery plan must state the parties’ views and proposals on: (C) any issues about disclosure, or discovery, or preservation of electronically stored information, including the form or forms in which it should be produced; (D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production.

Rule 34: As stated previously, boilerplate objections are prohibited and objections must “state with ‘specificity’ the grounds for objecting” and “whether any responsive materials are being withheld.” The Committee notes that “An objection may state that a request is overbroad, but . . . should state the scope that is not overbroad.” An objection that “states the limits that have controlled the search for responsive and relevant materials”—which might include the date range or the scope of sources or search terms used—”qualifies as a statement that the materials have been ‘withheld.'”

Rule 37(e): This Rule creates a standard for spoliation sanctions and remedial measures where ESI “that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” If another party is prejudiced by the loss of the ESI, a court “may order measures no greater than necessary to cure the prejudice.”  Where the party acted with intent to deprive another party of the ESI, a court may (A) “presume that the lost information was unfavorable to the party”; (B) “instruct the jury that it may or must presume the information was unfavorable to the party”; or (C) “dismiss the action or enter a default judgment.”  The Committee notes that “this rule recognizes that ‘reasonable steps’ to preserve suffice; it does not call for perfection.”

The litigation division of Knott Ebelini Hart has experienced federal practitioners who can assist you through the legal process both in state and federal court.  Please contact Knott Ebelini Hart at 239-334-2722 for further information.

July 1, 2016

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