Copyright © 2015 Bradley & Riley PC - All rights reserved. October 30, 2015 IA ACC 2 nd Annual Corp. Counsel Forum Timothy J. Hill Laura M. Hyer N EW F EDERAL R ULES OF C IVIL P ROCEDURE I N -H OUSE C OUNSEL C ONSIDERATIONS N EW F EDERAL R ULES OF C IVIL P ROCEDURE I N -H OUSE C OUNSEL C ONSIDERATIONS

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Introduction to 2015 Amendments Effective Date: December 1, 2015 State Rule Amendments?

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Overview of Rule Amendments 1.Discovery Amendments 2.Early Judicial Case Management 3.Duty to Cooperate 4.Failure to Preserve Electronically Stored Information (“ESI”)

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Discovery Amendments 1.Scope of Discovery: Fed. R. Civ. P. 26(b)(1) 2.Protective Orders and Cost-Shifting: Rule 26(c)(1) 3.Early Requests for Production: Rules 26(d)(2) and 34(b)(2)(A) 4.Requests for Production—Specific Objections, Production, Withholding: Rules 34 and 37(a)

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Discovery Amendments Scope of Discovery: Fed. R. Civ. P. 26(b)(1) Proportionality (in) Discovery of Information in Aid of Discovery (in) Subject-Matter Discovery (out) “Reasonably calculated to lead” (out)

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Amended Rule 26(b)(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: 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. Scope of Discovery: Proportionality

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Proportionality is now a condition of discovery; requested information must be “proportional to the needs of the case.” Proportionality Factors:  importance of issues at stake  amount in controversy  parties’ relative access to relevant information  parties’ resources  importance of discovery in resolving the issue  burden/expense versus likely benefit Scope of Discovery: Proportionality

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Deletes examples of discoverable matters (i.e., documents, tangible things, persons with knowledge). Deletes “For good cause, the court may order discovery of any matter relevant to the subject matter....” Deletes “need not be admissible... if... reasonably calculated to lead to the discovery of admissible evidence.”  Replaces with “Information... need not be admissible... to be discoverable.”  Form objections should be altered to remove “reasonably calculated” language. Scope of Discovery: Deleted Key Language

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS “[A party may move for a protective order] (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery” Amendment explicitly recognizes power of court to issue a protective order that allocates the expenses of disclosure or discovery. Advisory Committee Note indicates that cost-shifting should remain an uncommon practice and that “a responding party ordinarily bears the costs of responding.” Protective Orders and Cost-Shifting: Rule 26(c)(1)

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Rules 26(d)(2); 34(b)(2)(A) Relaxes discovery moratorium to permit service of requests for production before the attorney conference. Allows a party to deliver Rule 34 requests to another party more than 21 days after that party has been served. If served with an early request for production, the responding party has 30 days after the Rule 26(f) attorney conference to respond. Purpose: “facilitate focused discussion during the Rule 26(f) conference” Early Requests for Production

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Rules 34 and 37(a) Requires that objections to Rule 34 requests state the “grounds for objecting” “with specificity.” Recognizes common practice of producing documents or ESI, rather than simply permitting inspection; documents must be timely produced, subject to a motion to compel. In cases where responding party produces documents subject to an objection, the response must “state whether any responsive materials are being withheld on the basis of that objection.” Requests for Production: Specific Objections, Production, Withholding

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Scheduling Conference/Order [Rule 16]  Timing: shortens time for issuance of scheduling order (90 days after service or 60 days after appearance) unless good cause for extension  Contents of Scheduling Order  Order regarding preservation of ESI  Clawback agreements under Fed. R. Evid. 502  Pre-Motion conferences with court Early and Active Judicial Case Management

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Time to Serve Complaint [Rule 4(m)] – reduces presumptive time to serve process from 120 days to 90 days Purpose of both Amendments: – reduce delay at onset of litigation Early and Active Judicial Case Management

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Rule 1. Scope and Purpose.... [These 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. Recognizes shared responsibility for “cooperative and proportional” discovery Does NOT create independent source of sanctions Duty to Cooperate

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Conditions for Curative Measures or Sanctions Limited to ESI; does NOT include all “discoverable information” as originally proposed. Failure to Preserve ESI: Rule 37(e)

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Conditions for Curative Measures or Sanctions Sanctions for lost ESI only if: 1.ESI is lost or destroyed after the common law duty to preserve arises; 2.Reasonable steps to preserve were not taken; and 3.ESI “cannot be restored or replaced through additional discovery.” Failure to Preserve ESI: Rule 37(e)

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Curative Measures or Sanctions Uniform Standard: – establishes a uniform standard for the imposition of sanctions concerning the loss or destruction of ESI – most severe sanctions are limited to intentional loss or destruction. Failure to Preserve ESI: Rule 37(e)

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Curative Measures or Sanctions Curative Measures to Remedy Prejudice: If court finds that party seeking ESI is “prejudiced” by loss or destruction, court may order “measures no greater than necessary to cure the prejudice.” Intentional Loss or Destruction: If court finds that responding party “acted with the intent to deprive another party of the information’s use in the litigation,” court may (but need not) impose most severe sanctions of adverse inference presumption/instruction, dismissal or default judgment. Failure to Preserve ESI: Rule 37(e)

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Abrogation of Rule 84 Notice of a Lawsuit and Request to Waive Service of Summons Waiver of the Service of Summons Both forms will now be appended to Rule 4. No More Forms

B RADLEY & R ILEY PC A TTORNEYS AND COUNSELORS Proposals to reduce presumptive limits on the: number of interrogatories (15) number of requests for admission (25) number (5) and duration (6 hours) of depositions have been withdrawn due to “fierce resistance.” Withdrawn Proposals

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