AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE

Erik S. Fisk, Whitfield & Eddy, P.L.C., fisk@whitfieldlaw.com, 515-288-6041

Blackstone Inn of Court, Thursday, January 21, 2016

Effective December 1, 2015, the Federal Civil Rules amendment package includes amendments to Rules 1, 4, 16, 26, 30, 31, 33, 34,
37, 55, 84 and the Appendix of Forms. This presentation will go over the rules in three groups. First, we consider rules generally concerning
discovery, second the specific rules pertinent to ESI, and finally the balance of the rules generally applying to scheduling and administration.

I. AMENDED SCOPE OF DISCOVERY RULES

A. Amendment to Rule 26(b)(1), Scope of Discovery; Proportionality

Rule Comment
Rule 26. Duty to Disclose; General Provisions; Governing Discovery Information is discoverable under
(b) Discovery Scope and Limits. FRCP 26(b)(1) if relevant to any
(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: partys claim or defense AND is
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim proportional to the needs of the
or defense[ and proportional to the needs of the case, considering the importance of the issues case; the proportionality rules are
at stake in the action, the amount in controversy, the parties relative access to relevant taken from Rule 26(b)(2)(C)(iii),
information, the parties resources, the importance of the discovery in resolving the issues, and with slight modification.
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.]
-- 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:
....
FRCP 26(b)(2)(C)(iii) is amended
(iii) the burden or expense of the proposed discovery [is outside the scope permitted by Rule
to reflect that the proportionality
26(b)(1)] outweighs its likely benefit, considering the needs of the case, the amount in controversy,
considerations are incorporated
the parties resources, the importance of the issues at stake in the action, and the importance of the
from FRCP 26(b)(1).
discovery in resolving the issues.
 B. Amendment to Rule 26(c)(1)(B)

Rule 26, contd. Information that is discoverable

(c) Protective Orders. under FRCP 26(c)(1)(B) is
(1) In General. amended to include reference to
.... protective orders allocating
(B) specifying terms, including time and place [or the allocation of expenses], for the disclosure or expenses for disclosure or
discovery; discovery.
(d) Timing and Sequence of Discovery.

C. Amendment to Rule 26(d)(2), (d)(3)

Rule 26, contd. New subsection, (d)(2)allows a

(d) Timing and Sequence of Discovery. party to deliver Rule 34
.... (documents, ESI, things) requests
[(2) Early Rule 34 Requests. to another party more than 21 days
(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, after that party has been served,
a request under Rule 34 may be delivered: even before FRCP 26(f)
(i) to that party by any other party, and conference. Delivery is made by
(ii) by that party to any plaintiff or to any other party that has been served. any party to the party that has been
(B) When Considered Served. The request is considered to have been served at the first Rule served, and by that party to any
26(f) conference.] plaintiff and any other party that
(2[3]) Sequence. Unless, on motion, [the parties stipulate or] the court orders otherwise for the has been served.
parties and witnesses convenience and in the interests of justice: (A) methods of discovery may be
used in any sequence; and FRCP 26(d)(3) is renumbered and
(B) discovery by one party does not require any other party to delay its discovery. amended to recognize that the
.... parties can stipulate discovery
sequence.
(f) Conference of the Parties; Planning for Discovery.
(3) Discovery Plan. A discovery plan must state the parties views and proposals on: FRCP 26(f)(3) is amended along
(C) any issues about disclose[,] or discovery[, or preservation] of electronically stored information, with 16(b)(3) to add to the
including the form or forms in which it should be produced; discovery plan: (1) issues about
(D) any issues about claims of privilege or of protection as trial-preparation materials, including if preserving ESI and court orders
the parties agree on a procedure to assert these claims after production whether to ask the court to under FRE 502 (disclosure of
include their agreement in an order [under Federal Rule of Evidence 502]; attorney-client privilege, work
product protected documents).

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 D. Amendment to Rules 30, 31, 33

Rule 30. Depositions by Oral Examination

(a) When a Deposition May Be Taken. FRCP 30, along with 31 and 33,
(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent adds the new proportionality
consistent with Rule 26(b)[(1) and ](2): measure of FRCP 26(b)(1).
(d) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to one day
of 7 hours. The court must allow additional time consistent with Rule 26(b)[(1) and ](2) if needed to
fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or
delays the examination.
Rule 31. Depositions by Written Questions FRCP 31 and 33 add
(a) When a Deposition May Be Taken. proportionality measure of FRCP
(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent 26(b)(1).
consistent with Rule 26(b)[(1) and ](2):
***
Rule 33. Interrogatories to Parties
(a) In General
(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other
party no more than 25 written interrogatories, including all discrete subparts. Leave to serve
additional interrogatories may be granted to the extent consistent with Rule 26(b)[(1) and ](2).

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 E. Amendment to Rule 34(b)(2)

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering FRCP 34(b)(2)(A) is amended to
onto Land, for Inspection and Other Purposes conform to new subsection 26(d)(2)
(b) Procedure. (early FRCP 34 requests); the time
(2) Responses and Objections. to respond to early FRCP 34
(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 request is 30 days after 26(f)
days after being served[ or if the request was delivered under Rule 26(d)(2) within 30 days conference.
after the parties first Rule 26(f) conference]. A shorter or longer time may be stipulated to under
Rule 29 or be ordered by the court. FRCP 34(b)(2)(B) requires any
(B) Responding to Each Item. For each item or category, the response must either state that objections to Rule 34 requests be
inspection and related activities will be permitted as requested or state an objection[with specificity stated with specificity, which ties to
the grounds for objecting] to the request, including the reasons.[ The responding party may state 34(b)(2)(C), directing that
that it will produce copies of documents or of electronically stored information instead of objection must state whether any
permitting inspection. The production must then be completed no later than the time for responsive materials are being
inspection specified in the request or another reasonable time specified in the response.] withheld on the basis of objection.
(C) Objections. [An objection must state whether any responsive materials are being withheld
on the basis of that objection. ]An objection to part of a request must specify the party and permit FRCP 34(b)(2)(B) reflects the
inspection of the rest. option of producing copies of
documents or ESI rather than
permitting inspection. Response to
the request must state that copies
will be produced and production
completed either by the time for
inspection specified in the request
or by another reasonable time
specifically identified in the
response.

FRCP 34(b)(2)(C) provides that an

objection to a Rule 34 request must
state whether anything is being
withheld on the basis of the
objection.

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 F. Amendment to Rule 37(a)

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions FRCP 37(a)(3)(B)(iv) is amended
(a) Motion for an Order Compelling Disclosure or Discovery. to reflect option of producing
.... copies of documents or ESI rather
(3) Specific Motions. than simply permitting inspection.
.... This change brings item (iv) into
(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling line with paragraph (B), which
an answer, designation, production, or inspection. This motion may be made if: provides for a motion for an order
.... compelling production, or
(iv) a party[ fails to produce documents or] fails to respond that inspection will be permitted or inspection.
fails to permit inspection as requested under Rule 34.

II. AMENDMENTS TO RULE 37(E)

A. Amendment to Rule 37(e)

Rule 37 (continued) FRCP 37(e) is replaced by a new

(e) Failure to Provide[Preserve] Electronically Stored Information. Absent exceptional Rule 37(e). The new rule
circumstances, a court may not impose sanctions under these rules on a party for failing to provide authorizes and specifies measures
electronically stored information lost as a result of the routine, good faith operation of an electronic a court may employ if information
information system.[If electronically stored information that should have been preserved in the that should have been preserved is
anticipation or conduct of litigation is lost because a party failed to take reasonable steps to lost, and specifies the findings
preserve it, and it cannot be restored or replaced through additional discovery, the court: necessary to justify these measures.
(1) upon finding prejudice to another party from loss of information, may order measures no
greater than necessary to cure the prejudice; or Amendments also recognize a duty
(2) only upon finding that the party acted with the intent to deprive another party of the to preserve discoverable
informations use in the litigation may: information may arise before an
(A) presume that the lost information was unfavorable to the party; action is filed.
(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.

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 B. Amendment to Rule 37(e)(1)

If the loss of ESI results in prejudice to another party, the court may order measures no greater than necessary to cure the
prejudice.

Examples of curative measures:

a) forbidding the party that failed to preserve ESI from putting on certain evidence;
b) permitting the parties to present evidence and argument to the jury regarding the loss of ESI; or
c) giving the jury instructions to assist in its evaluation of such evidence or argument.

Any such measures must not have the effect of any sanction permitted under Rule 37(e)(2).
Prop Rule 37(e), Adv. Comm. Note

C. Amendment to Rule 37(e)(2)

If the loss of ESI resulted from a partys intent to deprive another party of the ESIs use in the litigation, the court may impose
very severe sanctions, including:

(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.

III. AMENDMENTS TO RULES 1, 4, 16, 55, 84

A. Amendment to Rule 1

Rule 1. Scope and Purpose The parties share the

These rules govern the procedure in all civil actions and proceedings in the United States district responsibility to construe and
courts, except as stated in Rule 81. They should be construed[,] and administered[, and employed administer the rules to secure the
by the court and the parties] to secure the just, speedy, and inexpensive determination of every just, speedy, and inexpensive
action and proceeding. determination of every action.

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 B. Amendment to Rule 4(m)

Rule 4. Summons Forms 5 and 6 are directly

(d) Waiving Service. incorporated into Rule 4, after
(1) Requesting a Waiver. abrogation of Rule 84 and forms.
....
(C) be accompanied by a copy of the complaint, 2 copies of a[the] waiver form[ appended to this Presumptive time for serving a
Rule 4], and a prepaid means for returning the form; defendant is reduced to 90 from
(D) inform the defendant, using text prescribed in Form 5[the form appended to this Rule 4], of the 120 days (consider with shortened
consequences of waiving and not waiving service; times for 16(b)(2) scheduling
.... order, reduces beginning of
(m) Time Limit for Service. If a defendant is not served within 120 [90] days after the complaint is litigation).
filed, the court on motion or on its own after notice to the plaintiff must dismiss the action
without prejudice against the defendant or order that service be made within a specified time. But if Final amendment excludes
the plaintiff shows good cause for the failure, the court must extend the time for service for an 71.1(d)(3)(A) (re: serving notice of
appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule condemnation/eminent domain
4(f) or 4(j)(1) [or to service of a notice under Rule 71.1(d)(3)(A)]. proceedings) from this time limit
subsection.

Shortened 4(m) time means time

for notice under F.R.C.P.
15(c)(1)(C) also shortened for it to
relate back to initial time of
filing.

C. Amendment to Rule 16(b)(1)

Rule 16. Pretrial Conferences; Scheduling; Management Scheduling conference by

(b) Scheduling. telephone, mail, or other means
(1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge or a is deleted; it can be held in person,
magistrate judge when authorized by local rule must issue a scheduling order; by telephone, or more sophisticated
(A) after receiving the parties report under Rule 26(f); or electronic means.
(B) after consulting with the parties attorneys and any unrepresented parties at a scheduling
conference by telephone, mail, or other means.
....

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 D. Amendment to Rule 16(b)(2)

Rule 16, contd The time for court to issue the

(b) Scheduling. scheduling order is reduced to the
.... earlier of 90 days after any
(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any event defendants service, or 60 days
[unless the judge finds good cause for delay, the judge must issue it] within the earlier of 120 after any defendants appearance
[90] days after any defendant has been served with the complaint or 90 [60] days after any defendant (pair with Rule 4(m) streamlined
has appeared. timeframe, shortens initial delay in
litigation).

New provision maintains ability of

court to find good cause to extend
the time to issue the scheduling
order.

E. Amendment to Rule 16(b)(3)

Rule 16. Pretrial Conferences; Scheduling; Management Scheduling order may:

(b) Scheduling. (1)Provide for preservation of
(3) Contents of the Order. ESI (also in discovery plan, see
.... 26(f)(3)(C)).
(B) Permitted Contents. The scheduling order may: (2)Include agreements under
.... FRE 502, controlling effects of
(iii) provide for disclosure[,] or discovery[, or preservation] of electronically stored information; disclosure of atty-client privilege
(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial- or work-product protected
preparation material after information is produced[, including agreements reached under Federal information (also in discovery
Rule of Evidence 502; plan, see 26(f)(3)(D)).
(v) direct that before moving for an order relating to discovery, the movant must request a (3) Direct that the movant must
conference with the court;] request a conference with the court
(v[vi]) set dates for pretrial conferences and for trial; and before filing a motion for an order
(vi[vii]) include other appropriate matters. relating to discovery (decision
whether to require such
conferences is left to the discretion
of the judge in each case).

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 F. Amendment to Rule 55(c)

Rule 55. Default; Default Judgment Rule 55(c) is amended to clarify

(c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for the relationship between FRCP
good cause, and it may set aside a [final ]default judgment under Rule 60(b). 54(b), 55(c), and 60(b). A default
judgment that does not dispose of
all the claims among all parties is
not a final judgment under Rule
54(b).

G. Abrogation of Rule 84 and the Appendix of Forms

Rule 84. Forms FRCP 84 and the Appendix of

[Abrogated (Apr. __, 2015, eff. Dec. 1, 2015.] Forms have been abrogated.
The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that
these rules contemplate.
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