August 18, 2017

The 2015 Amendments to the Federal Rules of Civil Procedure (Part 1 of 3)

Bill_Groh

Editor’s Note: This is Part 1 of a three-part series discussing the 2015 changes to the Federal Rules of Civil Procedure. Part 2 will discuss the changes to Rule 26 and Part 3 will discuss the changes to Rules 30, 31, 33, 34, 37, 55, and 84. 

By William C. Groh, III

New and important changes to the Federal Rules of Civil Procedure (Federal Rules) took effect on December 1, 2015 and apply to all newly filed cases as well as currently pending cases “insofar as just and practicable.”[1] The changes affect Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84. They deal primarily with the scope of discovery, case management, and preservation of electronically stored information (ESI). The amendments generally reflect an effort to refocus litigants’ ongoing obligation to conduct discovery efficiently and in appropriate proportion to the needs of the case at issue. The redline version of the 2015 amendments, with committee notes, is available for download at www.uscourts.gov/file/18481/download.

Rule 1

Rule 1 previously was a rule of construction that required the courts to administer the Federal Rules to ensure “the just, speedy, and inexpensive determination” of civil actions.[2] The wording placed responsibility on the courts. New Rule 1 expressly requires the courts and the parties to construe, administer and employ the Federal Rules to achieve these goals.[3]

Rule 4

Rule 4 has changed to provide a mandatory form to be used for requesting waiver of service. Prior Rule 4 contained an example waiver form but permitted other formats as long as they followed the rule’s substantive requirements. The waiver of service form provided with New Rule 4 is now mandatory. The Rule 4 form can be downloaded at www.cod.uscourts.gov/Portals/0/Documents/Forms/CivilForms/notice-n-waiver-of-serv-summons.pdf.

Rule 16

The amendments to Rule 16 are designed to encourage speedier scheduling and greater court involvement in ensuring the preservation of ESI. New Rule 16(b)(1)(B) does away with the provision allowing communication by “telephone, mail, or other means” to substitute for a Rule 16(b) scheduling conference. The parties and the court must engage in direct simultaneous communication, either in person, by telephone, or by other means.[4]

New Rule 16 shortens the deadline for the court to issue its scheduling order. While the deadline was 120 days under Prior Rule 16, New Rule 16 requires the court to issue the court scheduling order within 90 days after service of the complaint or 60 days after the appearance of any defendant. The court may extend this deadline upon a finding of good cause.

Prior Rule 16(b)(3)(B) included a list of items for consideration in entering the court scheduling order. New Rule 16(b)(3)(B) adds to this list, providing that the court may also include protocols for preservation of ESI. This change is apropos considering the changes to Rule 37 governing sanctions for failure to preserve ESI, discussed below. The new rule also permits the court to add agreed protocols for dealing with the disclosure of privileged information under FRE 502, and to require the parties to request a conference before the court before filing discovery motions. In light of these new items, Rule 26(f)(3) has also been changed to require the parties to address these issues at their Rule 26(f) conference.

 


[1]. See J. Roberts order adopting amendments subject to congressional approval at 15 (April 29, 2015), www.uscourts.gov/file/document/congress-materials,  P. 15 (“the foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 2015, and shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”).

[2]. See Prior Rule 1. The prior rule required that the federal rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

[3]. New Rule 1.

[4]. Proposed Amendments to the Federal Rules of Civil Procedure (with Committee Notes) at 7, www.uscourts.gov/file/18481/download (2015 Committee Notes).


 

Bill Groh is an experienced commercial litigator who has represented individuals and small businesses in a variety of fields since 2005. Mr. Groh frequently handles matters involving both intellectual property and commercial litigation issues, including trademark infringement, copyright infringement, trade secret infringement, civil disputes involving breach of contract, business partnerships, allegations of breach of fiduciary duty, conversion, civil theft, actions for dissolution of partnership interest, and other such disputes that are increasingly common in modern business.

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  1. […] to the Federal Rules of Civil Procedure. Part 1 discussed the changes to Rules 1, 4, and 16, and is available here. Part 3 will discuss the changes to Rules 30, 31, 33, 34, 37, 55, and […]

  2. […] to the Federal Rules of Civil Procedure. Part 1 discussed the changes to Rules 1, 4, and 16, and is available here. Part 2 discussed the changes to Rule 26, and is available […]

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