New Federal Rules of Civil Procedure – Why Lawyers and Litigants Should Take Note

On December 1, 2015, the current set of pending amendments to the Federal Rules of Civil Procedure (“FRCP”) will become law. These are the rules that govern how cases are litigated in all of the U.S. District Courts, nationwide. There were many changes made to the rules, but below are two of the more significant updates for both attorneys and their clients to consider:

  1. A new “proportionality” requirement in the scope of discovery (FRCP 26(b)(1)). This rule was amended in response to a growing concern about the volume and expense of discovery, and to encourage judges to be more aggressive in identifying and discouraging the overuse of discovery. Under the current rule, information is deemed discoverable if it is “reasonably calculated to lead to the discovery of admissible evidence” and “relevant to the subject matter involved in the action.” The new language is more limiting, and instructs that parties may only obtain discovery that is relevant “ to any party’s claim or defense” and that is “proportional to the needs of the case.” In determining proportionality, the court will look at (1) “the importance of the issues at stake in the action,” (2) “the amount in controversy,” (3) “the parties’ relative access to relevant information,” (4) “the parties’ resources,” (5) “the importance of the discovery in resolving the issues,” and (6) “whether the burden or expense of the proposed discovery outweighs its likely benefit.”

Notably, the Massachusetts SJC’s Standing Advisory Committee on the Rules of Civil and Appellate Procedure is also considering the adoption of this rule to be used in state courts, as well. The impact of this rule remains to be seen, but could have a significant impact on the scope of discovery in the cases pending in the federal courts, and the litigation strategies developed by lawyers and their clients.

  1. Overhaul of Electronically Stored Information (“ESI”) rule (FRCP 37(e)). The present rule was completely rewritten to account for the skyrocketing use of ESI in litigation. ESI is defined by the FRCP as “information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software.” Requests for items falling under the category of ESI are more and more commonplace in today’s litigation landscape. The current rule excuses parties if they fail to produce ESI during the course of discovery because it is lost as a result of “the routine, good faith operation of any electronic information system.” The new rule, however, affirmatively grants the court the power to enact certain orders if ESI “should have been preserved in the anticipation or conduct of litigation,” and is lost because of a party’s failure to “take reasonable steps to preserve it.” Upon a finding that the other party is prejudiced by the loss of the information, the court may order “measures no greater than necessary to cure the prejudice.” However, if the court finds that the non-producing party acted “with the intent to deprive another party of the information’s use in the litigation,” a court could presume (or instruct a jury to presume) that the information was unfavorable to the party (i.e., an adverse inference), or, could dismiss the action entirely/enter a default judgment against the non-producing party.

The Committee Notes, which are published with the Rules, instruct courts to be “sensitive to the party’s sophistication with regard to litigation in evaluating preservation efforts.” The Notes continue, “Some litigants, particularly individual litigants, may be less familiar with preservation obligations than others who have considerable experience in litigation.” However, all business owners who may be subject to litigation should be aware of these rules. The key language in the rule is “in the anticipation or conduct of litigation.” If business owners anticipate that litigation is imminent, they would be well-served to contact counsel, and discuss their obligations to preserve under this rule. Although this rule has no equivalent in the Massachusetts Rules of Civil Procedure, it is likely that the state court will consider adoption of it, as it is considering adoption of the new FRCP 26(b)(1).

Because the FRCP amendments have not yet gone into effect, it remains to be seen how the courts and litigants will interpret and apply these rules, and consequently how significant an impact these amendments will have on the way cases are litigated in federal courts.


2017-01-13T17:14:52+00:00 November 20th, 2015|Categories: Litigation|0 Comments

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