Santa Barbara Litigation Alert�New Federal Procedural Rules are Coming

Prior to the end of the 2015, the Federal Rules of Civil Procedure are going to be amended. We know this because proposed amendments have been circulating for over a year. For those of you who find yourselves with cases that end up in federal court, it is critical to understand what the new proposed rules focus on, and what they are likely to mean to your case.

The Advisory Committee charged with proposing these amendments focused most of their attention on Rule 26 of the Federal Rules of Civil Procedure, and they did not hold back. If the proposed amendments to Rule 26 are adopted, the new rule will require lawyers to approach discovery very differently. Proposed Rule 26 would have far-reaching effects not only on proportionality but on cooperation between lawyers -- a concept discussed with some frequency, but thus far always within a “best practices” kind of context. Not any longer.

Here is how the amendments would change Rule 26. The new proposed language is underlined; the existing language sought to be removed is in italics:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the amount in controversy, the importance of the issues at stake in the action, 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. including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

In essence, the proposed Rule 26 is not new, it has simply been stripped down to the essential requirements -- that discovery be relevant and proportional to the needs of the case. What the Advisory Committee suggests by this move is that attorneys must rein in current discovery practices and begin to police themselves when it comes to discovery disputes.

At the center of all of the change in Rule 26 is the question of how the new rule will affect the the behavior of lawyers. Some things will have to change. First, boilerplate interrogatories and requests for production of documents will need to be replaced with tailored, concisely drafted discovery requests. This will undoubtedly require more time. The effect of this renewed effort, however, will likely be that attorneys will investigate early and take the time to understand what documents are likely involved in the case. Attorneys will need to sit down with their clients at the beginning of the case to prepare a discovery strategy that will require early communication and cooperation with opposing counsel.

Not only will Rule 26 demand changes to attorney behavior charitably described as “gamesmanship”, but several other amendments will alter key deadlines so as to force attorneys into early investigation and cooperation. Early case management will be crucial in light of an accelerated schedule. First, proposed Rule 4 will reduce the time for service of the Summons and Complaint from 120 days to 60 days; proposed Rule 16(b)(2) will reduce the time in which the judge must issue a scheduling order from 120 days to 90 days; and proposed Rule 16(b)(1)(B) will require that the scheduling conference cannot be conducted by telephone, mail or other means, but rather through "direct communication."

These abbreviated deadlines will require that counsel discuss scheduling and discovery issues early rather than late. Additionally, Rule 30 will limit oral depositions from 10 to 5 and limit each deposition to six hours instead of seven; Rule 31 will limit written depositions from 10 to 5; and Rule 36 will impose a limit of 25 requests for admission. These additional changes will require that attorneys focus only on the most relevant issues with a focus on that information that satisfies the proportional requirement of Rule 26.

If you are a business that finds itself in federal court more often than not, be aware that these changes are coming. And expect to partner with your counsel early in the case on strategy, if you are not already doing so. These proposed amended Rules will reward the prepared and transparent federal court litigator. For counsel more used to game playing, holding information back, and not involving either their client or opposing counsel in discovery discussions early in the case, the adjustment will be more acute.