Federal Rules Update Effective Dec. 1, 2015

Forms Abrogated / Pleading Standards? Rule 84 and Forms, including Form 18 (patent infringement complaint), eliminated. Pleading direct infringement must satisfy Twombly? Indirect infringement already required this. See In re Bill of Lading (FC 2012). BUT Rules Committee Comment: “The abrogation of Rule 84 does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8.” (Pending “reform” legislation would heighten pleading standards in other ways.)

Forms Abrogated Forms 5 and 6 for Waiver of Service move to substantive Rule 4.

Time Limit for Service Rule 4(m) amended regarding dismissal Was: 120 days Now: 90 days

Rule 26 Scope, Proportionality Rephrased 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.

Rule 26 Scope, Proportionality Rephrased “reasonably calculated to lead” language removed

Rule 26 Timing Can deliver Rule 34 Requests 21 days after summons and complaint. BUT: Considered served (for response time) at Rule 26(f) conference (Corresponding amendment to Rule 34)

Rule 34 Objections Time for Production Must state whether any responsive materials are being withheld. Time for Production “no later than the time for inspection specified in the request or another reasonable time specified in the response.”

Rule 37 and ESI Rule 37(e) Amended Was: sanctions for failure to preserve ESI (lost in routine operations) only for exceptional circumstances Now: Court can order “measures… necessary to cure prejudice” if: Should have been preserved Lost because failure to take reasonable steps; and Cannot be restored/replaced Intent to deprive = presumption of unfavorable info; jury instruction; or dismissal/default.