2015.12.01 -- FEDRCIVP -- PRESENTATION.PPTX

2015 Amendments to
Federal Rules of Civil Procedure
Eric S. Adams
Tampa Litigation Practice Group

Introduction
 Effective December 1, 2015
 Rules Amended
 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84
 Applicability
 All cases commenced after 12/1/2015
AND
 All proceedings pending on 12/1/2015,
“insofar as just and practicable”
2015 Amendments to Federal Rules of Civil Procedure

Introduction
 Focus
 Reduction of delays at beginning of litigation
 Scope of discovery
 Clearly defined consequences for failure to
preserve Electronically Stored Information
(ESI)

Introduction
 Focus
 Reduction of delays at beginning of litigation
 Shortened time frames
 Rule 4
 Rule 16
 Allowing some discovery, earlier
 Rule 26
 Requests for Production

Introduction
 Focus
 Scope of discovery
 Rule 26
 Proportional to needs of case
 Removal of mantra
“Reasonably calculated to lead to the
discovery of admissible evidence”

Introduction
 Focus
 Clearly defined consequences for failure to
preserve ESI
 Rule 37(e) -- Identification of factors
 Menu of remedies

Rule 1. Scope and Purpose
 Foundational Rule
“Secure just, speedy, and inexpensive
administration of every action and proceeding”
 Amended to emphasize that this is an
obligation of the courts and the parties
 Intended to discourage over-use, misuse,
and abuse of procedural tools that increase
costs and result in delay
 Cooperative and proportional use of
procedure

Rule 4. Summons
 Reduction in time for serving Defendant
 From 120 days
 To 90 days
 Spirit
 Reduction in delay at outset of litigation

Rule 4. Summons
 Consequence
 Dismissal, without prejudice
 Additional time may be requested, if needed
 Request for waiver / acceptance fails
 Difficult to serve defendant
 Special service required (in forma pauperis)

Rule 4. Summons
 Rule 84, abrogated
 No more forms
 Former Forms 5 and 6 are now directly
incorporated into Rule 4

Rule 16. Pretrial Conferences; Scheduling;
Management
 Manner of conducting Scheduling
Conferences
 Removal of language -- “telephone, mail, or
other means”
 Now, must take place by engaging in “direct
simultaneous communication”
 What does this mean?
 In person
 By telephone
 Other more sophisticated electronic means

Management
 Timing of Scheduling Conferences
 Deadline shortened by 30 days
 Now, 90 days after any defendant has been
served
OR
 Now, 60 days after any defendant has
appeared

Management
 Additional topics for discussion and
inclusion in Scheduling Order
 Preservation of ESI
 Whether or not any agreements can be
reached under Federal Rules of Evidence
502 regarding disclosure of privileged or
protected information
 Whether or not the parties should be required
to request an informal conference with the
court prior to filing discovery motions

Rule 26. Duty to Disclose; General Provisions
Governing Discovery
 Redefining scope of discovery
 Removes language providing that “[r]elevant
information need not be admissible at the trial
if the discovery appears reasonably
calculated to lead to the discovery of
admissible evidence”
 Removes language authorizing court to
“order discovery of any relevant subject
matter involved in the action”

Governing Discovery
 Redefining scope of discovery
 Reinforcing obligation of parties to consider
proportionality factors in making discovery
requests, responses and objections
 Dual standard
 “relevant to any party’s claim or defense”
AND
 “proportional to the needs of the case”

Governing Discovery
 Establishing enumerated factors
 Importance of issues at stake;
 Amount in controversy;
 Parties’ relative access to relevant
information;
 Parties’ resources;
 Importance of discovery in resolving issues;
AND
 Whether burden or expense of proposed
discovery outweighs its likely benefit

Governing Discovery
 Shorten timing
 Parties now permitted to deliver requests for
production (Rule 34) before Rule 26(f)
conference
 For purposes of calculating time for
response, requests are considered served at
the first Rule 26(f) conference

Rule 30. Depositions by Oral Examination
 Amended parallel with Rules 31 and 33
 Includes express references to Rules
26(b)(1) and (2)
 Express amendment to reflect recognition
of proportionality

Rule 31. Depositions by Written Questions
26(b)(1) and (2)
of proportionality

Rule 33. Interrogatories to Parties
26(b)(1) and (2)
of proportionality

Rule 34. Producing Documents, Electronically
Stored Information . . .
 Changes the required substance of
responses / objections to requests for
production
 Reduce potential burdens from objections
 No more boilerplate objections
 Objections must be stated with specificity
 State whether or not responsive documents
are being withheld
 Provide reasonable time for production

Rule 37. Failure to Make Disclosures or to
Cooperate in Discovery; Sanctions
 Wholesale revision of Rule 37(e)
 Directed to preservation and loss of ESI
 Adopts common law principle -- duty to
preserve arises when litigation is “reasonably
anticipated”
 Reflects common practice of producing
copies of documents or ESI, rather than
permitting inspection
 Harmonizes differing standards amongst
Circuits for imposing sanctions / curative
measures for failure to preserve ESI

 Wholesale revision of Rule 37(e)
 Specifies measures court may employ if ESI,
which should have been preserved, is lost
 Specifies findings necessary to justify
measures, essentially foreclosing courts’
reliance on inherent authority or state law

 If finding of prejudice based upon loss of
ESI, courts may only order measures
which are no greater than to cure the
prejudice

 If finding that party acted with intent to
deprive another party of information’s use
in litigation, court may:
 Presume the lost information was
unfavorable
 Instruct jury that it may or must presume the
information was unfavorable; or
 Dismiss the action / enter a default

 Examples of curative measures
 Forbidding party that failed to preserve ESI
from putting on certain evidence;
 Permitting parties to present evidence and
argument to the jury regarding the loss of
EDI; or
 Giving jury instructions to assist in jury’s
evaluation of such evidence / argument.

 Requires only “reasonable steps” to
preserve ESI
 Not perfection
 Includes consideration of
 Parties’ resources and sophistication
 Proportionality of efforts to preserve
 Does not impact validity of independent
tort claim for spoliation of evidence

Rule 55. Default; Default Judgment
 Clarification of interplay between Rules
54(b), 55 (c) and 60(b)
 Default judgment that does not dispose of
all of the claims among all parties is not a
final judgment, unless the court directs
entry of final judgment under Rule 54(b)

Rule 55. Default; Default Judgment
 Until final judgment is entered, Rule 54(b)
permits revision of default judgment at
any time
 Demanding standard under Rule 60(b)
only applies in seeking relief from final
judgment

Rule 84. Forms
 Abrogation of old 1938 Rules
 Recognition of alternative sources for
forms
 Websites of the Administrative Office of the
United States Courts
 Local law libraries
 Old Rules and Forms no longer
necessary
 No impact on existing pleadings
standards and requirements of Rule 8

2015.12.01 -- FEDRCIVP -- PRESENTATION.PPTX

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