New Amendments to the Federal Rules of Civil Procedure: What’s the Big Idea?

About once a year, our firm librarian drops off a revised edition of the Federal Rules of Civil Procedure. I take the new copy, shelve it, and recycle my old copy. Usually, the revisions in the new edition live quietly on my shelf. But this year’s edition was different. A set of changes to the Federal Rules that had been bubbling to the surface for nearly five years finally went into effect on December 1, 2015. In a world in which rules changes are typically gradual and incremental, these changes are relatively major.
This article focuses on the most significant of the December 2015 changes – those that are intended to make civil litigation more efficient by compressing early case management deadlines, streamlining discovery planning, narrowing discovery, and revamping the rules regarding the preservation of electronically stored information. The article discusses the changes to the rules themselves as well as the Advisory Committee Notes corresponding to each change. As is often the case with rules, the devil is in the details. But in this case, the most useful details aren’t necessarily in the rules, but buried in the Notes.
Rule 1 Modified to Obligate the Parties to Cooperate in Securing Just, Speedy, and Inexpensive Resolution
At first glance, it’s tough to get too excited about the change to Rule 1. But with the addition of eight words, the change to Rule 1 injects into the rules a requirement of cooperation among the parties in dealing with discovery. Now there can be no dispute that the parties, as much as the courts, have an obligation to administer the rules in a way that will secure just, speedy, and inexpensive resolution.
Practically speaking, new Rule 1 could be ubiquitously cited in discovery correspondence, motions, and court orders to drive home the point that the parties have an obligation to cooperate. Judges may use the rule change to stress this obligation instead of immediately burdening the court with discovery disputes. The amendment could also manifest itself in more-stringent standing order and local rule requirements to preplan discovery and meet and confer regarding disputes. That said, the Notes make clear that the amendment is not intended to create an independent source of sanctions; a party seeking sanctions for discovery abuse will need to tie its request to another rule.
Rules 4 and 16 Modified to Reduce Early Case Delay by Shortening the Time for Serving a Summons and Issuing the Scheduling Order
Rule 4 governs issuance and service of the summons. Before the December amendment, a plaintiff was presumptively given 120 days to serve a summons after the complaint was filed. To reduce delays at the outset of cases, Rule 4 has been amended to shorten that time to 90 days. The Notes recognize, however, that this shortened presumptive time for service may increase the frequency of extensions for good cause, for example, when a request to waive service fails or a defendant is difficult to service.
Rule 16 sets procedures for early case management. The December amendments shorten the time for the court to issue a scheduling order by 30 days. Again, this presumptive deadline is extendable. The Notes acknowledge that cases involving complex issues, multiple parties, and large organizations may need extra time to establish meaningful collaboration between counsel and those who can supply the needed information.
These changes in Rules 4 and 16 have several practical implications. Plaintiffs who intentionally delay service with the hope of negotiating a pre-litigation resolution will need to move more quickly. Also, because the court could issue its scheduling order sooner, the parties will need to submit their Rule 26 discovery plan earlier, and deadlines such as discovery cut-offs and expert report submissions could also come earlier. In short, the compression of the early case schedule will require parties to promptly dig into the case.
Rules 16 and 26 Amended to Require the Parties’ Discovery Plan to Address ESI Preservation and Inadvertent Disclosure
The amendments to Rule 26(f)(3) include substantive changes to the discovery plan that the parties must submit to the court following their discovery conference. The parties’ plan now must state their views on preservation of electronically stored information (ESI). It must also indicate whether they want the court to enter into an order any agreements the parties may have reached under Federal Rule of Evidence 502 regarding limitations on waivers due to the inadvertent disclosure of attorney work product and attorney-client communications. This is a significant point because incorporation of a Rule 502 agreement into a court order may expand its reach vis-à-vis third parties and in other actions.
Paralleling these changes, Rule 16(b)(3)(B) is amended to provide that the court may include in its scheduling order requirements for ESI preservation and any agreements that the parties may have re