Last month, my colleague James Kravitz wrote a blog elucidating a significant amendment to the document production rule under FRCP 34. His blog encouraged me to take a closer look at the other amendments that are now effective and share some of the highlights to kick- off 2016. Among other changes, lawyers should note the following:
FRCP 4 (Summons) reduces the time for service to be effected from 120 days to 90 days after the complaint is filed. Notice and waiver of service forms are appended directly to FRCP 4;
FRCP 16, 26(f) (Pre-trial Conferences and Scheduling Orders) encourages courts to hold scheduling conferences in- person or by telephone to facilitate direct communication; reduces the time in which a court must issue the scheduling order to the earlier of 90 days (reduced from 120) after any defendant is served; or 60 days (reduced from 90) after any defendant appears and provides that scheduling orders may: (i) preserve ESI; (ii) include privilege agreements under FRE 502, and directs parties to request a court conference before moving for a discovery order.
FRCP 26(b)(1) (Scope and Limits of Discovery) brings the notion of "proportionality" to the rules by limiting discovery to information that is relevant to the parties' claims or defenses and bids adieu to the old standards of information that is "reasonably calculated to lead to the discovery of admissible evidence" and "subject matter" discovery.
FRCP 26(d)(2); 34(b)(2) (Early Document Requests) permits parties to serve requests for FRCP 34 production more than 21 days after service and before the FRCP 26(f) conference. The requests are deemed "served" at the conference and parties must respond within 30 days of the conference.
FRCP 84 (Sample Forms) have been eliminated. Forms 5 and 6 are incorporated into Rule 4 (d). If you need a form, go to website of the Administrative Office of the United States Courts: www.uscourts.gov.
I suppose the biggest change (especially for those of us who have been practicing for awhile) is the introduction of the proportionality concept which supplants the longstanding discovery standard that lawyers have previously relied upon in seeking or defending against discovery orders. Now, instead of arguing that the discovery sought is "reasonably calculated to lead to the discovery of admissible evidence," practitioners must instead ensure that the discovery is proportional to the case. But what does "proportionality" in discovery mean?
Amended Rule 26 (b)(1) uses certain factors to define "proportionality" by mandating that discovery requested must be relevant and proportional to the case considering the: (i) importance of the issues at stake in the action; (ii) the amount in controversy; (iii) the parties' relative access to the relevant information; (iv) the parties' resources; (v) the importance of the discovery in resolving the issues; and whether the burden or expense of the proposed discovery outweighs its likely benefit.
It will be interesting to see whether the new proportionality guidelines promote the worthwhile goals of reducing discovery expenses and promoting resolution. In the meantime, I have a new standard to memorize.
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