New Rules of Civil Procedure Effective Dec. 1

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Nov. 30 — The newly amended Federal Rules of Civil Procedure become effective Dec. 1. The new Rules are written to promote active judicial case management and discovery that is proportional to the matter at hand that is achieved through the cooperation of the parties. The amendments to Rules 1, 16, 26 and 37 address eDiscovery.

Rule 1 has been amended to emphasize that both the court and the parties are responsible to ensure a ‘just, speedy and inexpensive' resolution in litigation (15 DDEE 496, 11/26/15). Rule 16 now requires a court to hold a scheduling conference by direct communication (not a written exchange) in the absence of a scheduling order that is not based on a parties' Rule 26(f) conference report.

The Rule 16 order may also incorporate a preservation order, a Federal Rule of Evidence 502 agreement, and a requirement that an informal court hearing be held before any discovery motions are filed (15 DDEE 466, 10/29/15).

Rule 26 has had a significant overhaul. To streamline the scope of discovery, the phrase ‘reasonably calculated to lead to the discovery of admissible evidence' has been removed, as has subject-matter discovery. The ‘proportionality' language and factors that were buried in Rule 26(g) have been moved to a place of prominence in Rule 26(b)(1) (15 DDEE 507, 11/26/15).

In addition, the “importance of the issue at stake” now precedes the “amount in controversy” factor, and a new factor— “parties' relative access to relevant information”—has been included. Rule 26(f)(3) also is amended to require the parties to discuss the preservation of electronically stored information in their discovery plan, as well as FRE 502 orders (15 DDEE 41, 2/5/15).

Lastly, Rule 37 has been amended to apply exclusively to electronically stored information, with the aim of creating a universal standard for the imposition of sanctions. The new Rule applies only if ESI that should have been preserved is lost, a party failed to take reasonable steps to preserve it, and information that has been lost can't be restored or replaced by additional discovery.

Courts that make that determination are constrained to order measures no greater than necessary to cure any prejudice they have found a party suffered from loss of the information. In addition, courts can presume that lost information was unfavorable to the party, instruct a jury that it may or must presume the information was unfavorable to the party or dismiss the action/enter a default judgment only upon finding the party acted with the intent to deprive another party of using the information in litigation (15 DDEE 5, 1/8/15).