Changing the Scope of Discovery and Other Significant Revisions

The 2015 Amendments to the Federal Rules of Civil Procedure

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Posted March 31, 2016

December did more than say “goodbye” to the year 2015; it also marked the end of the Federal Rules of Civil Procedure as we formerly knew them. Amendments to the Federal Rules became effective December 1, 2015, including some significant changes.

If there was any doubt on the importance of these amendments, U.S. Supreme Court Chief Justice John Roberts in his 2015 Year-End Report on the Federal Judiciary made it clear that unlike “modest and technical, even persnickety” changes in the past, the 2015 amendments are “different.” They are the culmination of what he described as “five years of intense study, debate, and drafting to address the most serious impediments to just, speedy, and efficient resolution of civil disputes.”

According to Chief Justice Roberts, the process began in 2010 when the Advisory Committee on Civil Rules sponsored a symposium on civil litigation comprised of various judges, professors, and lawyers. After triumphing through 40 pages and 25 data compilations, what the group concluded might come as a surprise to some.

“[W]hile the federal courts are fundamentally sound, in many cases civil litigation has become too expensive, time-consuming, and contentious, inhibiting effective access to the courts,” Chief Justice Roberts said.

After a three year journey of more than 2,300, written comments, 120 witnesses, multiple hearings, and other milestones, the amendments traveled from the Judicial Conference, the national policy-making body of the federal courts; made their way through the U.S. Supreme Court; and landed at Congress. The symposium intended for the final product addressed four specific areas in need of reform that Chief Justice Roberts said were “problems”:

  • Greater cooperation among counsel;
  • Focus discovery on what is truly necessary to resolve the case;
  • Engage judges in early and active case management; and
  • Address serious new problems with vast amounts of electronically stored information.

The result includes sweeping changes to Federal Rules of Civil Procedure 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, 84, and the Appendix of Forms. Some of the highlights of the new amendments are summarized below.

Rule 1. Scope and Purpose

Rule 1 previously required the Federal Rules of Civil Procedure to be construed and administered to secure a just, speedy, and inexpensive determination. The amended version imposes a third mandate: the federal rules must also be “employed” by the courts and the parties in order to accomplish those goals. Discussing the amendment, Chief Justice Roberts said, “The new passage highlights the point that lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes.”

Rule 4. Summons.

Rule 4(m). Time limit for Service. Absent a showing of good cause or other stated exception, the time for serving a defendant with the summons and complaint under Federal Rule of Civil Procedure 4 shrinks from 120 days to 90 days after filing in the amended version. The comment explains that the change is intended to shorten delay at the beginning of litigation.

Rule 16. Pretrial Conferences; Scheduling; Management

Rule 16(b)(1)(B). Under the former version of Rule 16(b)(1)(B), the judge was generally required to issue a scheduling order after receiving the parties’ Rule 26(f) report or consulting with them at a scheduling conference “by telephone, mail, or other means.” The amended version of Rule 16(b)(1)(B), however, dispenses with “by telephone, mail, or other means.” According to the comment to the amended rule, “A scheduling conference is more effective if the court and parties engage in direct simultaneous communication.” As the comment indicates, the amended version of Rule 16(b)(1)(B) encourages simultaneous communication “in person, by telephone, or by more sophisticated electronic means.”

Rule 16(b)(2). The amended version of Rule 16(b)(2) reduces the time for a court to issue a scheduling order to the earlier of 90 days (down from 120) after any defendant has been served or 60 days (down from 90) after any defendant has appeared unless the judge finds good cause for any delay.

Rule 16(b)(3)(v). Changes to Rule 16(b)(3) incorporate additional potential subject matter to be included in a scheduling order. One of the new topics includes requiring a movant to request a conference with the court prior to filing a motion for an order relating to discovery.

Rule 26. Duty to Disclose; General Provisions Governing Discovery.

Rule 26(b)(1). Scope in General. Like its predecessor, the amended Rule 26(b)(1) permits parties to obtain discovery regarding any nonprivileged matter “that is relevant to any party’s claim or defense.” The revised version, however, adds a new limitation; discovery must also be “proportional to the needs of the case.”

The amended Rule 26(b)(1) provides a series of factors to consider whether discovery is “proportional,” including:

  • 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.

In addition, the new version of Rule 26(b)(1) loses former language maintaining that discovery need not be admissible at trial if “reasonably calculated to lead to the discovery of admissible evidence.” Under Rule 26(b)(1) as amended, information within the scope of discovery “need not be admissible in evidence to be discoverable.”

The amendment to Rule 26(b)(1) also deletes language which authorized the court upon good cause to order discovery of any relevant subject matter involved in the action.

You can find the amended 2015 Federal Rules of Civil Procedure at: http://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure. In addition, you can find a redlined version of the rules as amended for comparison at: http://www.uscourts.gov/file/18905/download.