December.07.2015
Amendments to the Federal Rules of Civil Procedure ("Rules") that took effect on December 1, 2015, are expected to impact numerous aspects of civil litigation, including service of process, discovery (including electronically stored information ("ESI")), default judgments, and possibly pleadings requirements in patent cases.[1] The amendments apply to newly filed cases, as well as pending cases "insofar as just and practicable."[2] Below is a summary of changes to the Rules:
Rule 1: Requires parties, as well as courts, to construe, administer, and employ the Rules in a manner "to secure the just, speedy, and inexpensive determination of every action and proceeding." The Advisory Committee on Rules of Civil Procedure ("Committee") notes that: "Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure."[3]
Rule 4(m): Allows 90 days—instead of the previous 120-day limit—to serve the summons and complaint.[4]
Rule 16: Reduces the time to enter scheduling orders to the earlier of 90 days (previously 120 days) after a defendant has been served or 60 days (previously 90 days) after a defendant has made an appearance. Rule 16(b)(2). Scheduling orders may include preservation provisions and clawback agreements (FRE 502) and direct parties to request a conference with the court before filing discovery motions. Rule 16(b)(3).[5]
Rule 26(b)(1): "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claims or defense and proportional to the needs of the case. . . ." Replaces former definition of the scope of discovery "[r]elevant information need not be admissible . . . if the discovery appears reasonably calculated to lead to the discovery of admissible evidence" with "[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable." The Committee notes a party may not "refuse discovery simply by making a boilerplate objection that it is not proportional."[6]
Rules 26(d)(2) and 34(b)(2)(A): Early requests for production –prior to the 26(f) conference- may be served. However, the responding party has 30 days after the first 26(f) conference to respond instead of the usual 30 days after service of the requests.[7]
Rule 26(c)(1)(B): Protective orders may shift the cost of discovery. The Committee notes this change does not "imply that cost-shifting should become a common practice." Parties should assume the "responding party ordinarily bears the costs of responding."[8]
Rule 34: Boilerplate objections are prohibited and objections must "state with specificity the grounds for objecting" and "whether any responsive materials are being withheld." The Committee notes: "An objection may state that a request is overbroad, but . . . should state the scope that is not overbroad." An objection that "states the limits that have controlled the search for responsive and relevant materials"—which might include the date range or the scope of sources or search terms used—"qualifies as a statement that the materials have been 'withheld.'" Furthermore, this Rule includes a new provision that "[t]he production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response." This new provision appears to limit the parties' ability to engage in unconstrained rolling productions. [9]
Rule 37(e): Creates a uniform standard for spoliation sanctions and curative measures where ESI "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." If another party is prejudiced by the loss of the ESI, a court "may order measures no greater than necessary to cure the prejudice." Rule 37(e)(1). Where the party acted with intent to deprive another party of the ESI, a court 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." Rule 37(e)(2). The Committee notes "this rule recognizes that 'reasonable steps' to preserve suffice; it does not call for perfection."[10]
Rule 55(c): Clarifies that a court may set aside a final default judgment under Rule 60(b).[11]
Rule 84: Now abrogated in its entirety. This rule had stated that "the forms in the Appendix suffice under these rules."[12] The abrogation of Rule 84 may allow courts to find, for example, that bare-bones patent complaints under Form 18 are insufficient, and require that direct infringement allegations comply with the Supreme Court's Iqbal and Twombly precedent.[13]
Parties engaged in, or preparing for, litigation should carefully consider whether and how these changes to the Rules will impact their litigation decisions and strategy. Please see Orrick's NorCal IP Blog for more extensive commentary on the Rules amendments.
[1] Supreme Court of the United States, Amendments to the Federal Rules of Civil Procedure, available at http://www.supremecourt.gov/orders/courtorders/frcv15(update)_1823.pdf.
[2] Id. at 3.
[3] United States Courts, Redline of Civil Procedure Rules Text and Committee Notes, available at http://www.uscourts.gov/rules-policies/current-rules-practice-procedure, at 1-2.
[4] Id. at 4-5.
[5] Id. at 5-7.
[6] Id. at 10-12, 17-19.
[7] Id. at 14-15, 31.
[8] Id. at 13-14, 25.
[9] Id. at 31-34.
[10] Id. at 35-47.
[11] Id. at 48.
[12] Id. at 49-50.
[13] Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).