EXAMINING THE 2015 AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDUREPresented by REBECCA RUTHERFORDJudicial Law ClerkNorthern District of Texas, Dallas214.753.2412 | Rebecca_Rutherford@txnd.uscourts.gov

PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE

Effective December 1, 2015

Civil Rules “package” includes amendments to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, 84 and the Appendix of Forms

PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE

FED. R. CIV. P. 26, 34 & 37

Discovery Amendments

Proposed Amendment to Rule 26(b)(1)Limits to the Scope of Discovery

Information is discoverable if it is “relevant to any party’s claim or defense” and “proportional to the needs of the case considering [various enumerated factors].”

Proposed Amendment to Rule 26(b)(1)Limits to the Scope of Discovery

Deletes language authorizing the court to “order discovery of any relevant subject matter involved in the action.”

Deletes language providing that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

Proposed Amendment to Rule 26(b)(1)

Proposed Amendment to Rule 26(b)(1)ProportionalityProportionality factors, relocated from Rule 26(b)(2)(C)(iii):

a) the importance of the issues at stake; b) the amount in controversy; c) the parties’ relative access to relevant information; d) the parties’ resources; e) the importance of the discovery in resolving the issues; and f) whether the burden or expense of the proposed discovery outweighs its likely benefit.

Proposed Amendment to Rule 26(b)(1)Proportionality

Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., No. 12 CIV. 1579 HB JCF, 2013 WL 1195545, at *3 (S.D.N.Y. Mar. 25, 2013).

Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 305-06 (S.D.N.Y. 2012).

Labaty v. UWT, Inc., No. SA-13-CV-389-XR, 2015 WL 1393641 (W.D.Tex. Mar. 24, 2015).

Proposed Amendment to Rule 26(b)(1)ProportionalityProportionality factors:

a) the importance of the issues at stake; b) the amount in controversy; c) the parties’ relative access to relevant information; d) the parties’ resources; e) the importance of the discovery in resolving the issues; and f) whether the burden or expense of the proposed discovery outweighs its likely benefit.

Proposed Amendment to Rule 26(c)(1)(B)Adds “the allocation of expenses” among the terms that may be included in a protective order.

Proposed Amendment to Rule 26(d)(2)Allows a party to deliver Rule 34 requests for production of documents in advance of the Rule 26(f) conference

Proposed Amendment to Rule 34(b)(2)No more boilerplate objections

• Objections be stated “with specificity;” • State whether responsive documents are being withheld;

and• Provide a reasonable time for production.

PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE

FED. R. CIV. P. 37(e)

New Rule Directed to the Preservation and Loss of Electronically-Stored Information

Proposed Amendment to Rule 37(e)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.

Proposed Amendment to Rule 37(e)• Limited to ESI

Proposed Amendment to Rule 37(e)• Adopts common law principle that duty to preserve arises

when litigation is reasonably anticipated

Proposed Amendment to Rule 37(e)• Requires only “reasonable steps” to preserve

• Not perfection• Includes consideration of:

• The party’s resources and sophistication• Proportionality of the efforts to preserve

Proposed Amendment to Rule 37(e)• Applies only if lost ESI cannot be restored or replaced

Proposed Amendment to Rule 37(e)(1)PrejudiceIf the loss of ESI results in prejudice to another party, the court “may order measures no greater than necessary to cure the prejudice.”

Proposed Amendment to Rule 37(e)(1)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; orc) 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

Proposed Amendment to Rule 37(e)(2) Intent to DepriveIf the loss of ESI resulted from a party’s intent to deprive another party of the ESI’s 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.

PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE

FED. R. CIV. P. 1, 4 & 16

Designed to Improve Cooperation and Encourage Active Judicial Case Management

Proposed Amendment to Rule 1Provides that the Civil Rules “should be construed, administered, and employed by the court and the partiesto secure the just, speedy, and inexpensive determination of every action and proceeding.”

Proposed Amendment to Rule 4(m)

Reduces the time limit for serving the summons and complaint from 120 days to 90 days

Proposed Amendment to Rule 16(b)(2)

Reduces the time for a court to issue a scheduling order to 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared

The court may set a later date for issuing the scheduling order upon a finding of “good cause.”

Proposed Amendment to Rule 16(b)(3)Identifies three additional topics for discussion and possible inclusion in the scheduling order:

(a) the preservation of ESI; (b) whether any agreements can be reached under FRE 502 pertaining to the disclosure of privileged information or work product protected material; and (c) whether the parties should be required to request an informal conference with the court prior to filing any discovery motions.

Proposed Amendment to Rule 16(b)(1)(B)Encourages courts to conduct scheduling conferences through “direct simultaneous communication,” i.e., in person, by telephone, or by “more sophisticated electronic means”

Proposed Abrogation of Rule 84 and theAppendix of Forms

“The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.”

Proposed Amendment to Rule 55(c)Rule 55. Default; Default Judgment

* * * * (c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b).

EXAMINING THE 2015 AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDUREPresented by REBECCA RUTHERFORDJudicial Law ClerkNorthern District of Texas, Dallas214.753.2412 | Rebecca_Rutherford@txnd.uscourts.gov