FEDERAL PRACTICE
December 2015 Changes to the Federal Rules
By Victoria L. Nilles Esq. Vice Chair: Federal Practice Of Counsel, Taft Stettinius & Hollister LLP
O
n December 1, 2015, amendments to the Federal Rules of Civil Procedure1 went into effect and “govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”2 According to Chief Justice John G. Roberts Jr., the amendments are the “product of five years of intense study, debate, and drafting to address the most serious impediments to just, speedy, and efficient resolution of civil disputes” and “mark significant change, for both lawyers and judges, in the future conduct of civil trials.”3 The Advisory Committee on Civil Procedure started the five-year process at the 2010 Conference on Civil Litigation held at Duke University Law School. “The symposium specifically identified the need for procedural reforms that would (1) encourage greater cooperation among counsel; (2) focus discovery—the process of obtaining information within the control of the opposing party—on what is truly necessary to resolve the case; (3) engage judges in early and active case management; and (4) address serious new problems associated with vast amounts of electronically stored information.”4 The end result was amendment of Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55, and abrogation of Rule 84 and the Appendix of Forms.
Cooperation (Rule 1)
The change to Rule 1 adds eight words to make clear that both the parties and the court are obliged to make litigation efficient: the Civil Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”5 The Advisory Committee Note emphasizes the obligation, but makes clear that the rule change is not intended to serve as a basis for sanctions for failure to cooperate: Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way. Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with -- and indeed depends upon -- cooperative and proportional use of procedure. This amendment does not create a new or independent source of sanctions. Neither does it abridge the scope of any other of these rules.6
Though in the discovery realm, other rule changes also strive for cooperation: Rule 26’s proportionality considerations and Rule 34’s requirement to state specific objections.
Discovery (Rules 26, 30, 31, 33, 34)
The 2015 Amendments address several “big picture” discovery issues: reducing the scope of discovery, highlighting proportionality as a principle to be applied to all discovery, and reducing the potential for unreasonable burdens caused by boilerplate objections to requests for production.7 “Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality” 8 and corrects the misinterpretation that the “reasonably calculated” language allows discovery of irrelevant information.9 Proportionality is not new, but was buried in former Rule 26(b)(2)(C) (iii). The amendment moves the proportionality factors to the forefront
10 Dayton Bar Briefs March 2016
of Rule 26(b)(1) and uses those factors to define the scope of permissible discovery, which must be: 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.” 10
The Rule 26 Advisory Committee Note also provides a detailed summary of the proportionality factors and explains that the amendment does not change the existing collective responsibilities of courts and parties to consider proportionality of all discovery and to also consider proportionality in resolving discovery disputes.11 The discovery of inadmissible information dates back to 1946 when Rule 26 was changed to allow discovery of information not admissible at trial if it were “reasonably calculated to lead to the discovery of admissible evidence.”12 In 2000, the word “relevant” was added to narrow the scope to that matter relevant to any party’s claim or defense, but over time, that narrowing has been lost.13 With the recent amendment, it is now clear that the discovery of inadmissible information is bounded by relevance to the parties’ claims or defenses. Rules 30, 31, and 33 were also amended to add the limitations of proportionality and the narrowed scope of discovery by incorporating Rule 26(b)(1) into their texts.14
continued on pg 11 Endnotes (1-14) addt’l cont. on pg 13: Available at http://www.supremecourt.gov/orders/courtorders/frcv15_5h25. pdf; see also April 29, 2015 Transmittal to Congress (“Transmittal”), available at www.uscourts.gov/file/document/congress-materials. The Transmittal of the Civil Rules begins at page 13 of 2015-04-29 transmittal_to_congress_final_0.pdf. Subsequent Transmittal references are to the specific page in the pdf (not the page numbers identified on the various documents within the Transmittal). 2 Transmittal, supra note 1, at Order, April 29, 2015, p. 15. 3 John G. Roberts Jr., 2015 Year-End Report on the Federal Judiciary (Dec. 31, 2015), available at http://www.supremecourt.gov/publicinfo/yearend/2015year-endreport.pdf, at 4, 5. 4 Id. at 5. 5 Fed. R. Civ. P. 1 (amendment in underlined text). 6 Fed. R. Civ. P. 1 advisory committee’s note. 7 Transmittal, supra note 1, at pp. 114-16, 119; Fed. R. Civ. P. 34 advisory committee’s note. 8 Roberts, supra note 3, at 6. 9 Transmittal, supra note 1, at pp. 117-18; Fed. R. Civ. P. 26 advisory committee’s note (“The phrase has been used by some, incorrectly, to define the scope of discovery.”) 10 Fed. R. Civ. P. 26(b)(1). 11 Fed. R. Civ. P. 26 advisory committee’s note. 12 Transmittal, supra note 1, at p. 118. 13 Id.; Fed. R. Civ. P. 26 advisory committee’s note. 14 Fed. R. Civ. P. 30(a)(2)(A)(i) (additional depositions), 30(d)(1) (adding time to deposition duration), 31(a)(2)(A)(i) (additional depositions by written questions), 33(a)(1) (additional interrogatories); see also respective advisory committee’s notes. 937.222.7902 1