copyright © 2015 bradley & riley pc - all rights reserved. october 30, 2015 ia acc 2 nd annual...

Copyright © 2015 Bradley & Riley PC - All rights reserved.

October 30, 2015IA ACC 2nd Annual

Corp. Counsel Forum

Timothy J. Hill Laura M. Hyer

NEW FEDERAL RULES OF CIVIL PROCEDUREIN-HOUSE COUNSEL CONSIDERATIONS

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ATTORNEYS AND COUNSELORSwww.bradleyriley.com

Introduction to 2015 Amendments

• Effective Date: December 1, 2015

• State Rule Amendments?

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Overview of Rule Amendments

1. Discovery Amendments

2. Early Judicial Case Management

3. Duty to Cooperate

4. Failure to Preserve Electronically Stored Information (“ESI”)

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1. Scope of Discovery: Fed. R. Civ. P. 26(b)(1)

2. Protective Orders and Cost-Shifting: Rule 26(c)(1)

3. Early Requests for Production: Rules 26(d)(2) and 34(b)(2)(A)

4. Requests for Production—Specific Objections, Production, Withholding: Rules 34 and 37(a)

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Discovery Amendments

Scope of Discovery: Fed. R. Civ. P. 26(b)(1)

• Proportionality (in)• Discovery of Information in Aid of

Discovery (in)• Subject-Matter Discovery (out)• “Reasonably calculated to lead”

(out)

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Amended Rule 26(b)(1) Scope in General.

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, 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.

Scope of Discovery: Proportionality

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• Proportionality is now a condition of discovery; requested information must be “proportional to the needs of the case.”

• Proportionality Factors: importance of issues at stake amount in controversy parties’ relative access to relevant information parties’ resources importance of discovery in resolving the issue burden/expense versus likely benefit

Scope of Discovery: Proportionality

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• Deletes examples of discoverable matters (i.e., documents, tangible things, persons with knowledge).

• Deletes “For good cause, the court may order discovery of any matter relevant to the subject matter . . . .”

• Deletes “need not be admissible . . . if . . . reasonably calculated to lead to the discovery of admissible evidence.”

Replaces with “Information . . . need not be admissible . . . to be discoverable.”

Form objections should be altered to remove “reasonably calculated” language.

Scope of Discovery: Deleted Key Language

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• “[A party may move for a protective order] (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery”

• Amendment explicitly recognizes power of court to issue a protective order that allocates the expenses of disclosure or discovery.

• Advisory Committee Note indicates that cost-shifting should remain an uncommon practice and that “a responding party ordinarily bears the costs of responding.”

Protective Orders and Cost-Shifting:

Rule 26(c)(1)

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Rules 26(d)(2); 34(b)(2)(A)

• Relaxes discovery moratorium to permit service of requests for production before the attorney conference.

• Allows a party to deliver Rule 34 requests to another party more than 21 days after that party has been served.

• If served with an early request for production, the responding party has 30 days after the Rule 26(f) attorney conference to respond.

• Purpose: “facilitate focused discussion during the Rule 26(f) conference”

Early Requests for Production

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Rules 34 and 37(a)• Requires that objections to Rule 34 requests state the

“grounds for objecting” “with specificity.”

• Recognizes common practice of producing documents or ESI, rather than simply permitting inspection; documents must be timely produced, subject to a motion to compel.

• In cases where responding party produces documents subject to an objection, the response must “state whether any responsive materials are being withheld on the basis of that objection.”

Requests for Production:Specific Objections, Production, Withholding

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• Scheduling Conference/Order [Rule 16]

Timing: shortens time for issuance of scheduling order (90 days after service or 60 days after appearance) unless good cause for extension

Contents of Scheduling Order Order regarding preservation of ESI Clawback agreements under Fed. R.

Evid. 502 Pre-Motion conferences with court

Early and Active Judicial Case Management

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• Time to Serve Complaint [Rule 4(m)]– reduces presumptive time to serve process

from 120 days to 90 days

• Purpose of both Amendments: – reduce delay at onset of litigation

Early and Active Judicial Case Management

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Rule 1. Scope and Purpose

. . . . [These rules] should be construed, administered,

and employed by the court and the parties to secure

the just, speedy, and inexpensive determination of

every action and proceeding.

• Recognizes shared responsibility for

“cooperative and proportional” discovery

• Does NOT create independent source of sanctions

Duty to Cooperate

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Conditions for Curative Measures or Sanctions

• Limited to ESI; does NOT include all “discoverable information” as originally proposed.

Failure to Preserve ESI: Rule 37(e)

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Conditions for Curative Measures or Sanctions

• Sanctions for lost ESI only if:

1. ESI is lost or destroyed after the common law duty to preserve arises;

2. Reasonable steps to preserve were not taken; and

3. ESI “cannot be restored or replaced through additional discovery.”


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Curative Measures or Sanctions

• Uniform Standard: – establishes a uniform standard for the

imposition of sanctions concerning the loss or destruction of ESI

– most severe sanctions are limited to intentional loss or destruction.


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Curative Measures or Sanctions

• Curative Measures to Remedy Prejudice: If court finds that party seeking ESI is “prejudiced” by loss or destruction, court may order “measures no greater than necessary to cure the prejudice.”

• Intentional Loss or Destruction: If court finds that responding party “acted with the intent to deprive another party of the information’s use in the litigation,” court may (but need not) impose most severe sanctions of adverse inference presumption/instruction, dismissal or default judgment.


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Abrogation of Rule 84

• Notice of a Lawsuit and Request to Waive Service of Summons

• Waiver of the Service of Summons

• Both forms will now be appended to Rule 4.

No More Forms

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Proposals to reduce presumptive limits on the:

• number of interrogatories (15)

• number of requests for admission (25)

• number (5) and duration (6 hours) of depositions

have been withdrawn due to “fierce resistance.”

Withdrawn Proposals

Cedar Rapids2007 First Avenue SE

PO Box 2804 Cedar Rapids, Iowa 52406

Ph: 319.363.0101Fax: 319.363.9824

Iowa CityTower Place

One South GilbertIowa City, Iowa 52240

Ph: 319.466.1511 Fax: 319.358.5560

THANK YOU

BRADLEY & RILEY PC


Follow up questions can be directed to Timothy J. Hill

at [email protected]

copyright © 2015 bradley & riley pc - all rights reserved. october 30, 2015 ia acc 2 nd annual...

Documents

discovery amendments2

proposed discovery

condition of discovery

bradley riley pciowa

com5amended rule 26b1

matter relevant

state rule amendments

importance of issues