The document summarizes the key changes to the Federal Rules of Civil Procedure (FRCP) that took effect on December 1, 2015. The amendments aim to encourage early and meaningful engagement between parties to appropriately narrow the scope of discovery. Specifically, Rule 16 requires earlier scheduling orders that address preservation of electronically stored information and discovery conferences. Rule 26 redefines discovery's scope to only include information that is relevant and proportional. It also allows parties to request documents before discovery conferences. Rule 34 requires specific objections to document requests rather than boilerplate objections. Rule 37 establishes standards for sanctions over lost electronically stored information that focus on parties acting reasonably during preservation efforts.

1. HEAD IN A SPIN OVER
THE FRCP AMENDMENTS?
Here’s a practical overview
of the December 1, 2015 amendments.
The Federal Rules of Civil Procedure (FRCP) amendments aim to
encourage cooperation among counsel, facilitate early case management,
and ensure that discovery is proportional and targeted. They also address
preservation of electronically stored information (ESI) and provide a
national sanctions regime for ESI loss.
Under Rule 16, scheduling orders are now due the earlier of 90 days
from service on any defendant or 60 days after any defendant’s
appearance, and may address:
• ESI preservation.
• FRE 502(d) orders.
• Discovery conference requirements.
RULES 16 AND 26:
EARLY CASE MANAGEMENT = EFFECTIVE CASE MANAGEMENT
Under Rule 26, parties now may deliver Rule 34 document requests before the Rule 26(f)
conference (with responses due 30 days after the parties’ first Rule 26(f) conference),
permitting parties to have meaningful conversations about the scope of discovery
requests sooner – not later.
Rule 26(b)(1) redefines the scope of discovery to
permit only discovery that is both:
• Relevant to any party’s claim or defense.
• Proportional to the needs of the case, when
considering:
• the importance of the issues;
• the amount in dispute;
• the parties’ relative access to information;
• the parties’ resources;
• the importance of the discovery sought; and
• the burden of the discovery versus its benefit.
RULE 26
SCOPE OF DISCOVERY = PROPORTIONAL +
RELEVANT TO A CLAIM OR DEFENSE
Objections to document requests must:
• Be stated with specificity.
• State whether any information is being
withheld based on an objection.
RULE 34:
SPECIFIC OBJECTIONS = NO BOILERPLATE
RULE 37(E):
ESI PRESERVATION AND
SANCTIONS = ACT REASONABLY
Under Rule 37(e), a party’s failure to preserve ESI
entitles an adversary to obtain relief only if:
• The party had a common law duty to preserve the
ESI because it reasonably anticipated litigation.
• The party’s preservation efforts were
unreasonable.
• The information was lost or destroyed and
cannot be restored or replaced through
additional discovery.
The standard for preservation is reasonableness, not
perfection, and courts should evaluate:
• The party’s conduct at the time it executed its
preservation efforts.
• The extent to which third parties had effective control of
the lost ESI.
• Whether the preservation efforts were proportional.
As for sanctions, a court can order only:
• Relief that is “no greater than necessary” to cure any
prejudice suffered, where the party had no intent to
deprive its adversary of using the ESI in the litigation.
• Case-altering sanctions, where the party destroyed ESI
with the intent of depriving its adversary of the
information.
Read more about the amendments in full at
www.PracticalLawFRCPChanges.com.
RULE 1:
EFFECTIVE ADVOCACY = COOPERATION
Rule 1 now charges the parties
and the court with using the rules
to “secure the just, speedy and
inexpensive determination of
every action and proceeding.”
The change emphasizes that attorneys
and parties “share the responsibility” with the court of moving cases
forward in a cooperative and proportional manner.
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