2015.12.01 -- fedrcivp -- presentation.pptx

2015 Amendments toFederal Rules of Civil Procedure

Eric S. AdamsTampa 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 12/1/2015AND

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


Rule 16. Pretrial Conferences; Scheduling; Management Timing of Scheduling Conferences

Deadline shortened by 30 days Now, 90 days after any defendant has been

servedOR

Now, 60 days after any defendant has appeared


Rule 16. Pretrial Conferences; Scheduling; 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”


Rule 26. Duty to Disclose; General Provisions 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”


Rule 26. Duty to Disclose; General Provisions 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


Rule 26. Duty to Disclose; General Provisions 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



of proportionality


Rule 33. Interrogatories to Parties



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


Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions 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


Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions


Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions If finding of prejudice based upon loss of

ESI, courts may only order measures which are no greater than to cure the prejudice


Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions 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


Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions 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.


Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions 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 Amendments toFederal Rules of Civil Procedure

Eric S. AdamsTampa Litigation Practice Group