Don’t Be Caught Off Guard by the Upcoming Changes to the ... · Don’t Be Caught Off Guard by the Upcoming Changes to the Federal Rules of Civil Procedure Presented by: Jay C

Don’t Be Caught Off

Guard by the Upcoming

Changes to the Federal

Rules of Civil Procedure

Presented by:

Jay C. Carle, Seyfarth Shaw LLP

Kathleen F. McConnell, Seyfarth Shaw LLP

Matthew C. Christoff, Seyfarth Shaw LLP

October 28, 2015

©2015 Seyfarth Shaw LLP

“Duke Package” Proposal: Themes and Timeline

• May 2010

• The Advisory Committee on the Federal Rules of Civil Procedure met at Duke Law School to

discuss the increasing need for improved case management, proportionality in discovery,

the importance of cooperation, and uniform national rules regarding preservation and

spoliation sanctions.

• May 2010 – June 2013

• Drafts of proposed amendments were developed, revised, and then approved for publication.

• August 2013 – February 2014

• Public comment period involved a series of public hearings held across the country.

• September 2014

• The Judicial Conference approved the proposed amendments and submitted them for

adoption by the Supreme Court.

• April 2015

• The Supreme Court adopted the proposed amendments and submitted them to Congress for

approval.

• December 1, 2015

• Proposed amendments become effective, absent Congressional action.

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“Duke Package” Proposal: Illustrated

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2010 2011 2012 2013 2014 2015 2016

May 2010

Judicial Conference Advisory Committee

Duke Law School

May 2010 – June 2013

Draft Amendments Revised and Presented

August 2013 – February 2014

Requests for Comments and Public Hearings

September 2014

Judicial Conference Recommended

Adoption by the Supreme Court

April 2015

Adopted by Supreme Court and

Submitted to Congress for Approval

December 1, 2015

Proposed Amendments Become Effective

Absent Congressional Action


Overview of Proposed Amendments

• Rule 1: Scope and Purpose

• Rule 4: Summons

• Rule 16: Pretrial Conferences; Scheduling; Management

• Rule 26: Duty to Disclose; General Provisions Governing Discovery

• Rule 30: Depositions by Oral Examination

• Rule 31: Depositions by Written Questions

• Rule 33: Interrogatories to Parties

• Rule 34: Producing Documents, Electronically Stored Information,

and Tangible Things, or Entering onto Land, for Inspection and Other

Purposes

• Rule 37: Failure to Make Disclosures or to Cooperate in Discovery;

Sanctions

• Rule 55: Default; Default Judgment

• Rule 84: Forms

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Rule 1: Scope and Purpose

• Proposed Amendment to Rule 1:

• [These rules] should be construed, and administered, and

employed by the court and the parties to secure the just,

speedy, and inexpensive determination of every action and

proceeding.

• Members of the Committee found that there had been a

significant increase in costs associated with discovery

due to hyperadversary behavior.

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Rule 1: Cooperation

• The term “cooperation” is absent from

the proposed text of Rule 1.

• The Committee decided against including a

specific requirement that the parties

cooperate.

• However, the Committee Notes state:

• “Most lawyers and parties cooperate to achieve

these ends.”

• “Effective advocacy is consistent with — and

indeed depends upon — cooperative and

proportional use of procedure.”

• The Committee Notes clarify that:

• “This amendment does not create a new or

independent source of sanctions.”

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Rule 16: Pretrial Conferences;

Scheduling; Management

• Proposed Amendment to Rule 16(b)(3)(B):

• Contents of the Scheduling Order may…

• (iii) provide for disclosure, or discovery, or preservation

of electronically stored information;

• (iv) include any agreements the parties reach for

asserting claims of privilege or of protection as trial-

preparation material after information is produced,

including agreements reached under Federal Rule of

Evidence 502;

• (v) direct that before moving for an order relating to

discovery, the movant must request a conference

with the court

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Rule 26: Current Rule 26(b)(1)

– Scope of Discovery

• Parties may obtain discovery regarding any nonprivileged matter

that is relevant to any party’s claim or defense 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.

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Rule 26: Revised Rule 26(b)(1)

– Scope of Discovery

• Parties may obtain discovery regarding any nonprivileged matter that is

relevant to any party’s claim or defense and proportional to the needs of

the case, considering:

• importance of the issues at stake in the action,

• the amount in controversy,

• the parties’ relative access to relevant information,

• the parties’ resources,

• the importance of the discovery in resolving the issues,

• and 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.

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– Considerations

• In an earlier proposal, the first two factors were reversed:

• importance of the issues at stake in the action,

• the amount in controversy.

• The factor addressing the “parties’ relative access to relevant

information” is a new addition.

• The Committee Notes also provided guidance regarding the

“burden” and “importance” factors:

• "A party claiming undue burden or expense ordinarily has far better

information — perhaps the only information — with respect to that part of

the determination. A party claiming that a request is important to resolve

the issues should be able to explain the ways in which the underlying

information bears on the issues as that party understands them.”

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– Judicial Enforcement of Scope

• FRCP 26(b)(2) Limits on Scope

• (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: . . .

• (iii) the burden or expense of the proposed discovery is outside the

scope permitted by Rule 26(b)(1) outweighs its likely benefit,

considering the needs of the case, the amount in controversy,

the parties’ resources, the importance of the issues at stake in

the action, and the importance of the discovery in resolving the

issues.

• Parallel Amendments: FRCP 30, 31, and 33

• 30 (Depositions), 31 (Depositions by Written Questions), and

33 (Interrogatories)

• Amended to reflect the recognition of proportionality in Rule

26(b)(1)

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Rule 26: Computer Assisted Review

• The Committee Note to Rule 26 endorses use of

“computer-based methods of searching”

information to address proportionality concerns in

cases involving large volumes of ESI.

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http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRxqFQoTCNSI_YL3msgCFcl5PgodbxcE6w&url=http://www.edrm.net/resources/carrm&psig=AFQjCNFhCg9ZkpM-MOE9Xx2LItV5_yH7lQ&ust=1443570896837232


Rule 26: 26(c) Protective Orders

26(f) Conference / Planning for Discovery

• Rule 26(c)(1) was also revised to specifically mention the possibility

of including “the allocation of expenses” in the terms of a

protective order.

• The Committee Notes make clear that “Recognizing the authority does

not imply that cost-shifting should become a common practice. Courts

and parties should continue to assume that a responding party ordinarily

bears the costs of responding.”

• Rule 26(f) mimics the additions to Rule 16, requiring that a

discovery plan must describe the preservation of ESI (in addition

to disclosure or discovery), as well as whether the parties will seek

an agreement under Federal Rule of Evidence 502.

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Rule 34: Producing Documents,

Electronically Stored Information

• Revised Rule 34(b)(2): • …

• (B) Responding to Each Item. For each item or category, the response

must either state that inspection and related activities will be permitted

as requested or state an objection with specificity the grounds for

objecting to the request, including the reasons. The responding party

may state that it will produce copies of documents or of

electronically stored information instead of permitting inspection.

The production must then be completed no later than the time for

inspection specified in the request or another reasonable time

specified in the response.

• (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 part and permit inspection

of the rest.

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Rule 34: Boilerplate Objections are

Not Sufficient

• Example of language that will no longer be sufficient

(and in some courts, is not currently):

• Defendant objects to this request on the grounds that it is vague,

ambiguous, overly broad, unduly burdensome, not reasonably

calculated to lead to the discovery of relevant information, seeks

information protected by the attorney-client privilege and seeks

confidential information.

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Rule 34: The New Requirements

– State the Why

• Implementation is not fully clear yet.

• Guidance from courts that are already implementing

similar requirements: State the Why.

• Why is the request overly broad?

• Example: Would require searching email for over 600 custodians

without regard to the relevance or importance of each custodian.

• Why is the request overly burdensome?

• Example: Conducting such a search would necessitate

expending significant time and resources [provide as much

quantification here as possible].

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Rule 34: Identification of Documents

Withheld

• A level of specificity is required with respect to

documents that are being withheld:

• A detailed description or log of all documents withheld is not

required, but

• the response needs to alert other parties to the fact that

documents have been withheld.

• Goal: facilitate an informed discussion of the objection.

• An objection that states the limits that have controlled the search

for responsive and relevant materials qualifies as a statement

that the materials have been “withheld.”

• For example, identifying that the responding party will limit the

search to documents or electronically stored information

created within a given period of time or to specific sources

(such as specific custodians or databases). 17


Current - Rule 37(e): Failure to Make Disclosures

or to Cooperate in Discovery; Sanctions

• Failure to Provide Electronically Stored Information

(Old “Safe Harbor” Provision)

• Absent exceptional circumstances, a court may not impose

sanctions under these rules on a party for failing to provide

electronically stored information lost as a result of the routine,

good-faith operation of an electronic information system.

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Revised - Rule 37(e): Failure to Make Disclosures

or to Cooperate in Discovery; Sanctions

• Failure to Preserve Electronically Stored Information.

• If electronically stored information 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, the court:

1. upon finding prejudice to another party from loss of the information,

may order measures no greater than necessary to cure the prejudice; or

2. only upon finding that the party acted with the intent to deprive another

party of the information’s use in the litigation 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.

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Revised - Rule 37(e): Application; Basis

• The new rule applies only to electronically stored

information.

• Because electronically stored information often exists

in multiple locations, loss from one source may often

be harmless when substitute information can be found

elsewhere.

• Rule 37(e) is based on the common-law duty to

preserve; it does not attempt to create a new duty.

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Revised - Rule 37(e): “Reasonable Steps”

• The rule applies only if the information was lost because a party

failed to take reasonable steps to preserve the information.

• This rule recognizes that “reasonable steps” to preserve suffice; it

does not call for perfection.

• The court should be sensitive to a party’s sophistication with regard

to litigation in evaluating preservation efforts.

• Proportionality is another factor courts may consider in evaluating

the reasonableness of preservation.

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Revised Rule 37(e) Flowchart

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Yes Yes

Yes

Yes No

Yes

1. Should have

been preserved?

2. Failure to

take reasonable

steps?

3. Information

cannot be restored/

replaced?

4. Intent to deprive?

5. Presume

unfavorable,

adverse inference

instruction, default

judgement or

dismissal

6. Prejudice?

7. Measures no greater

than necessary to cure

prejudice


Revised - Rule 37(e):

Curative Measures – Subdivision (e)(1)

• Remedy for Unintentional Loss of Information:

If information is lost as a result of a party’s failure to

take reasonable steps to preserve it, and not able to be

restored or replaced, and a finding of prejudice is made,

the court is authorized to employ measures “no greater

than necessary to cure the prejudice.”

• Burden: The rule does not place a burden of proving or

disproving prejudice on one party or the other. Rather,

the rule leaves judges with discretion to determine how

best to assess prejudice in particular case.

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Revised - Rule 37(e): Curative Measures

– Subdivision (e)(1) (Cont.)

• Serious measures are permitted under Rule 37(e)(1),

such as:

• forbidding the party that failed to preserve information from

putting on certain evidence,

• permitting the parties to present evidence and argument to the

jury regarding the loss of information, or

• giving the jury instructions to assist in its evaluation of such

evidence or argument (other than the instructions to which

37(e)(2) applies).

• However, they should not have the effect of measures

under Rule 37(e)(2).

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Revised - Rule 37(e):

Curative Measures – Subdivision (e)(2)

• Intent: Provides for severe sanctions, but only on finding that the

party that lost the information acted with the intent to deprive

another party of the information’s use in the litigation.

• Uniform Standard: Designed to provide a uniform standard in

federal court imposition of severe sanctions (negligence and gross

negligence are not sufficient).

• Prejudice Inferred: Does not require a separate finding of

prejudice because the finding of “intent to deprive” infers prejudice.

• Severe Sanctions Optional: Finding intent to deprive does not

require a court to adopt any of the 37(e)(2) measures.

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Case Management / Timing Amendments

• Rule 4(m): Service of Summons

• Shortens time for service of summons from 120 days to 90.

• Rule 16(b)(2): Issuance of Scheduling Orders

• Court is required to issue a scheduling order no later than 90 days after

any defendant has been served or 60 days after any appearance of a

defendant (down from 120 and 90 days, respectively).

• Rule 26(d)(2): Early Rule 34 Requests

• May serve Rule 34 requests 21 days after service of summons and

complaint. They are considered served at the first Rule 26(f)

conference.

• Rule 34(b)(2)(A): Time to Respond to Early Rule 34

Requests

• 30 days after the parties’ first Rule 26(f) conference.

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Other Amendments

• Rule 55(c): Default; Default Judgment

• Amended to clarify that the demanding standards for setting

aside a default judgment set by Rule 60(b) only apply to final

default judgments.

• Rule 84: Forms, and the Appendix of Forms

• Abrogated.

• Rule 4(d): Summons, Waiving Service

• The waiver of service form for complaints previously found in the

Appendix of Forms is now appended to Rule 4, as is the form

describing the consequences of waiving or not waiving service.

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Additional Resources

• The Report of the Judicial Conference

(outlining in detail drafting history and reasoning for the

amendments) can be found here: • http://www.uscourts.gov/rules-policies/archives/committee-

reports/reports-judicial-conference-september-2014

• The Advisory Committee Memo outlining the drafting history starts

on page 75

• A redline of the rules showing the proposed edits and Committee

Notes starts on page 95

• The 2015 Civil Rules Package As Approved By the

Judicial Conference, Thomas Y. Allman • http://www.americanbar.org/content/dam/aba/administrative/litigation/

materials/2015-

sac/written_materials/5_1_2015_summary_of_rule_package.authchec

kdam.pdf

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http://www.uscourts.gov/rules-policies/archives/committee-reports/reports-judicial-conference-september-2014














http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2015-sac/written_materials/5_1_2015_summary_of_rule_package.authcheckdam.pdf






Questions?

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Contact Information

Jay C. Carle

Partner, eDiscovery & Information Governance (Chicago)

[email protected]

Direct: (312) 460-6426

Kathleen F. McConnell

Counsel, eDiscovery & Information Governance (San Francisco)

[email protected]

Direct: (415) 544-1062

Matthew C. Christoff

Associate, eDiscovery & Information Governance (Chicago)

[email protected]

Direct: (312) 460-5315

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mailto:[email protected]

