LawToolBox Automates FRCP Amendments (eff. 12/1/2015)

LawToolBox Automates FRCP Amendments (eff. 12/1/2015)

LawToolBox automated FRCP Amendments as follows:
1) Amended deadlines have been automatically updated for your cases in LawToolBox
2) Deadlines expiring within 45 days from today will display both new rule and old rule deadlines
3) Amended deadlines are automatically updated in user calendars

On December 1, 2015, amendments to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84 of the Federal Rules of Civil Procedure go into effect, and the form for requesting a party waive formal service of process. These amendments reduce delay at the beginning of litigation, limit the scope of discovery by applying a proportionality analysis and requiring specific objections and explanation of whether any information was withheld based on an objection when answering written discovery.  The amendments have created mechanism for the parties to begin discussing what information should be preserved and produced through early requests for admission.  Also, penalties for spoliation of evidence have been clarified. The following analysis does not focus on interpreting the new scope of discovery or penalties for discovery violations, but instead has special focus on how these changes effect docketing.

  1. Which cases do rule changes apply to? Amended deadline apply to all cases filed after December 1, 2015, and to cases then pending as long as application of the new rules would be just and practical (e.g. if the new rules will cause great hardship, then the parties can stipulate to follow the old rules).
Deadline or Rule Description Before Rule Dec 2015 changes After Rule Dec 2015 changes
Deadline to serve complaint FRCP 4(m) Complaint filed +120 Complaint filed +90
Possible deadline for judge to issue Scheduling Order FRCP 16(b)(2) Complaint formally served +120

 

Complaint formally served +90
Possible deadline for judge to issue Scheduling Order FRCP 16(b)(2) Defendant files waiver of service + 120 Defendant files waiver of service + 90
Possible deadline for judge to issue Scheduling Order Case removed? Case removed?
Earliest date RFA can be delivered before Rule 26f conf FRCP 26(d)(2)(A) n/a Complaint formally served +22 (“more than 21 days”)
Earliest date RFA can be delivered before Rule 26f conf FRCP 26(d)(2)(A). n/a Defendant files waiver of service +22 (“more than 21 days”)
Earliest date RFA can be delivered before Rule 26f conf n/a Case removed?
Deadline to respond to RFA if party served RFA before Rule 26f conference FRCP 26(d)(2)(B) FRCP 34(b)(2)(A) n/a Date of Rule 26(f) conf + 30 days
Request conference with court before filing motion to compel FRCP 16(b)(3)(B)(v) n/a See scheduling order
Scope of discovery under FRCP 26(a)(1) Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 8 party’s claim or defense — 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. 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
Provision for spoliation of evidence Common law FRCP 37(e)
Specific provision for shifting cost of discovery no FRCP 26(c)(1)(B)
An objection must state whether any responsive materials are being withheld on the basis of that objection no FRCP 34(b)(2)(C)
Specific provisions related to ESI FRCP 34(b)(2)(B)

 

  1. FRCP 4 – Deadline to serve defendants shortened by 30 days.  Amendments to FRCP 4(m) have shortened the deadline to serve the summons and complaint to 90 days after the complaint is filed.

“The presumptive time for serving a defendant is reduced from 120 days to 90 days.  This change, together with the shortened times for issuing a scheduling order set by amended Rule 16(b)(2), will reduce delay at the beginning of litigation.  Shortening the presumptive time for service will increase the frequency of occasions to extend the time for good cause.  More time may be needed, for example, when a request to waive service fails, a defendant is difficult to serve, or a marshal is to make service in an in forma pauperis action.  … Shortening the time to serve under Rule 4(m) means that the time of the notice required by Rule 15(c)(1)(C) for relation back is also shortened.” – FRCP 4 Committee Note

3.  FRCP 16 – Deadline for judge to issue Scheduling Order shortened by 30 days.  Amendments to FRCP 16(b)(2) have shortened the judge to issue Scheduling Order to the EARLIER of 60 days after the appearance of any defendant, or 90 days after the complaint has been served on any defendant.  There are many factors to consider when analyzing this deadline:

  •  When a complaint is FORMALLY served is the trigger for the scheduling order to issue.
  • When a complaint is served BY WAIVER the trigger for the scheduling order to issue is the date any defendant files waiver of service.  See FRCP 4(d)(4) (“When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.”
  • The rules do not expressly address how to calculate the deadline for court to issue a scheduling order when a case has been removed from state court.
  • Many local rules for federal district courts have not yet been modified to conform to this deadline, and still refer to deadlines of 120 days after complaint served and 90 days after any defendants’ first appearance.  While local rules can supersede FRCP, parties should assume that the shorter of the various rules will apply in any decisions they make based on these timeframes.

“The time to issue the scheduling order is reduced to the earlier of 90 days (not 120 days) after any defendant has been served, or 60 days (not 90 days) after any defendant has appeared.  This change, together with the shortened time for making service under Rule 4(m), will reduce delay at the beginning of litigation.  At the same time, a new provision recognizes that the court may find good cause to extend the time to issue the scheduling order.  In some cases it may be that the parties cannot prepare adequately for a meaningful Rule 26(f) conference and then a scheduling conference in the time allowed.  Litigation involving complex issues, multiple parties, and large organizations, public or private, may be more likely to need extra time to establish meaningful collaboration between counsel and the people who can supply the information needed to participate in a useful way.  Because the time for the Rule 26(f) conference is geared to the time for the scheduling conference or order, an order extending the time for the scheduling conference will also extend the time for the Rule 26(f) conference.  But in most cases it will be desirable to hold at least a first scheduling conference in the time set by the rule.” – FRCP 16 Committee Note

  1. FRCP 16 – Scheduling Orders may require Court Conference before filing motions to compel discovery. See, FRCP 16(b)(3)(B)(v) (scheduling order may … “direct that before moving for an order relating to discovery, the movant must request a conference with the court”).

    5.  FRCP 26 – Discoverable Information redefined.  Amendments limit the scope of discoverable information and embrace a “proportionality” analysis: “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.” FRCP 26(a)(1).6. FRCP 26 & 34 – Early Rule 34 Requests can be delivered before Rule 26(f) Conference. This rule change has created new deadlines that run off the date a complaint has been formally served, the date a defendant files a waiver of service, and the date of the parties Rule 26(f) conference:

“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.”   FRCP 26(d)(2)(A).

“The request is considered to have been served at the first Rule 26(f) conference. “FRCP 26(d)(2)(B). “The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. ” FRCP 34(b)(2)(A).

“Rule 26(d)(2) is added to allow a party to deliver Rule 34 requests to another party more than 21 days after that party has been served even though the parties have not yet had a required Rule 26(f) conference.  Delivery may be made by any party to the party that has been served, and by that party to any plaintiff and any other party that has been served.  Delivery does not count as service; the requests are considered to be served at the first Rule 26(f) conference.  Under Rule 34(b)(2)(A) the time to respond runs from service.  This relaxation of the discovery moratorium is designed to facilitate focused discussion during the Rule 26(f) conference.  Discussion at the conference may produce changes in the requests.  The opportunity for advance scrutiny of requests delivered before the Rule 26(f) conference should not affect a decision whether to allow additional time to respond.”  FRCP 26 Committee note.