Proposed Rule Changes Shorten and Streamline Pretrial Discovery

In May, the Civil Rules Advisory Committee issued its report to the Standing Committee of the Judicial Conference addressing the proposed amendments to Federal Rules of Civil Procedure 1, 4, 16, 26, 30, 31, 33, 34 and 37.¹ The proposed amendments contained in the Advisory Committee Report adopted many, but not all, of the original proposed amendments sent out for public comment and changes one of the more controversial proposed amendments, the modification of Rule 37(e). In September, the Judicial Conference will meet to consider proposed changes to the rules and may propose further changes of its own, but if adopted by the U.S. Supreme Court, the current changes to the rules will have an impact on the way cases are litigated in the federal courts. The amendments are intended to reduce the time it takes parties to complete the early stages of a lawsuit, to reduce the cost and burden of discovery and to settle disputing views among courts regarding the scope of discovery and the appropriate sanctions for spoliation. From a day-to-day standpoint, litigants will feel the impact of these rules changes immediately in subtle and not so subtle ways. Most significantly, parties should have more comfort that the inadvertent loss of electronically stored data will not result in the significant sanctions that have been imposed on some parties for the negligent loss of data. Further the pretrial process has been shortened and streamlined, allowing the judge to take control of the case sooner. These changes mean that parties will need to consider their litigation strategy sooner and the type and scope of discovery they need earlier in the case. By reducing the time it takes to get to the merits stage of a lawsuit, the drafters of the rules amendments hope to reduce the costs associated with litigation in the federal courts.

Case Management

There are several proposed changes to the provisions of the federal rules that govern pretrial case management that were held over from the version sent out for public comment, particularly regarding the Rule 16 scheduling conference and order. The proposed changes would reduce the time to serve the summons and complaint on the defendant from 120 days to 90 days.² If the defendant has not been served within that time the court has the option to extend the time for service upon a showing of good cause for the failure to serve or dismiss the case. The proposed amendments also shorten the time the district judge has to issue the Rule 16 scheduling order from 120 days after a defendant has been served or 90 days after a defendant has appeared to 90 days after a defendant has been served or 60 days after a defendant has appeared.³ The original proposal to reduce this time period to 60 days was changed after strong opposition during the public comment period. The proposed amendments would allow the court to issue the scheduling order after receipt of the parties’ Rule 26(f) report or after “direct simultaneous communication” between the parties and the court.⁴ The rationale for this change is the view that if a scheduling conference is to be held, it is more efficient to hold it with direct interaction between the court and counsel for the parties. The proposed amendments also allow courts to alter or enhance the contents of the scheduling order. Under the proposed amendments the court may require a discovery conference prior to moving for a discovery order.⁵ The proposed amendments also permit the scheduling order to include agreements reached under Federal Rule of Evidence 502.⁶

Discovery