PHOSITA

Authored by Julie Langdon, January 29, 2016 at 2:21 pm
IP LAWSUITS

On December 1, 2015, amendments to certain rules of the Federal Rules of Civil Procedure went into effect. 

For a better understanding of the new amendments, I have set forth a breakdown of the primary amendments to the rules and the purpose of those amendments.

Rule Amendment

Purpose

Rule 1:

 

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They 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.

 

The amendment to Rule 1 is intended to discourage over-use, misuse, and abuse of procedural tools that increase costs and delay.

 

Rule 4(m):

 

If a defendant is not served within 120 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).

 

The intended purpose in reducing service from 120 to 90 days is to reduce the delay at the beginning of litigation. 

Rule 16(b)(1):

 

(1) Scheduling Order.  Except in categories of  actions exempted by local rule, the district judge  — or a magistrate judge when authorized by local rule — must issue a scheduling order: (A) after receiving the parties’ report under Rule 26(f); or  (B) after consulting with the parties’ attorneys  and any unrepresented parties at a scheduling conference by telephone, mail, or other means.

 

According to the Committee note, the purpose of this amendment is to have more effective scheduling conferences because the court and parties will engage in direct simultaneous communication.  

Rule 16(b)(2):

 

(2) Time to Issue.  The judge must issue the scheduling order as soon as practicable, but in any event unless the judge finds good cause for delay, the judge must issue it within the earlier of 120   90 days after any defendant has been served with the complaint or 90 60 days after any defendant has appeared.

 

The intent of this amendment is to reduce the delay at the beginning of litigation, but allow the court to extend the time to issue the scheduling order for good cause, for example, in complicated cases where the parties need additional time to prepare for a purposeful 26(f) conference. 

Rule 16(b)(3)(B):

 

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; . . .

 

This amendment is intended to broaden the scope of the court’s scheduling order. The court’s scheduling order may now also include (1) an order for the preservation of electronically stored information, (2) any agreements between the parties which deal with the disclosure of privileged information, and (3) an order directing the parties to request a court conference prior to moving for a discovery order. 

Rule 26(b)(1):

 

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: 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 the 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. — 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).

 

The intent of this amendment is to require the parties to consider “proportionality” factors such as the importance of requested discovery to resolve the issues, access to relevant information, the cost of obtaining that information, especially in relation to the amount in controversy, among other factors when requesting discovery.   It brings the rule in-line with the requirement under Rule 26(g) that an attorney must sign each discovery request and by signing the attorney certifies that the discovery request is not for any improper purpose (e.g. increase cost) and is not unreasonable, unduly burdensome, or expensive, among other things. 

 

After this amendment, the scope of discovery is now limited to: non-privileged matters which are relevant to a party’s claim or defense and which are proportional to the needs of the case.

 

The intent of this change is not to place on the party seeking discovery the burden of addressing all proportionality considerations, or permit a party to refuse discovery simply by making a boilerplate objection that the requested discovery is not proportional.

Rule 26(b)(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: . . .

 

(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.

 

The intent of this minor amendment is to bring it in-line with new proportionality requirement of Rule 26(b)(1), and reflects the need for judicial involvement in the discovery process. 

Rule 26(c) Protective Orders: 

 

(1) In General. . . . The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;”

 

The intent of this amendment is to provide the court with the ability to issue an order which includes express terms for the allocation of expenses for the discovery of certain information.  However, the intent of this amendment is not to imply cost-shifting is now appropriate in all cases, and courts and parties should continue to assume that a responding party bears the costs of responding.    

Rule 26(d) Timing and Sequence of Discovery.

 

(1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f) . . .

(2) Early Rule 34 Requests.

(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:

(i) to that party by any other party, and

(ii) by that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

 

The intent of the amendment to Rule 26(d)(2) is to now allow delivery of pre-Rule 26(f) conference Rule 34 discovery requests, but the time to respond begins to run after the Rule 26(f) conference in order to allow the parties to discuss those requests. 

 

 

Rule 26(f) Conference of the Parties; Planning for Discovery:

 

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on: . . .

(C) any issues about disclosure, or discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;

The intent of this amendment is to make this Rule in-line with Rule 16(b)(3) by requiring the parties to discuss and put forth their agreement on the preservation of electronically stored information and court orders under Evidence Rule 502.   

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.”

The overall intent of the amendment to Rule 34(b)(2) is to require that objections be stated with more specificity in order to alleviate any confusion based on objections made to discovery requests. 

 

The amendment to subpart (B) generally states that objections must be stated with specificity,  and it provides that the responding party may produce copies of information, but that production must be completed in the same timeframe as set out for the inspection, or in a reasonable timeframe as set forth in the response.  With respect to the first part of subpart (B), if certain parts of the request are not overbroad, the objecting party should indicate the scope that is not overbroad.   This can be done by indicating the scope of the discovery to which the responding party will respond, and stating that anything outside that scope will be withheld.

 

The amendment to subpart (C) requires parties to specifically state whether responsive materials are being withheld on the basis of a stated objection.  The specific documents being withheld do not need to be identified.  The hope of the drafters is that this amendment will end the confusion about whether responsive documents were withheld when various objections were made and documents were still produced.

 

Rule 37(e) Failure to Provide Preserve Electronically Stored Information.  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.  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.”

The intent of this amendment is to set forth one set of measures a court may employ when information that should have been preserved is lost because a party failed to take reasonable steps to preserve it.  This will allow the courts to move away from the various measures and standards being applied now due to the prior rule.   

 

While some of these rules, for example Rule 26(b)(1), Rule 34(b)(2), and Rule 37(e) may lead to some changes in litigation, the impact is not known yet.  This is definitely a topic to revisit in a year to ascertain whether any significant issues have arisen.