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Significant Changes to Discovery and Case Management Practices

By Andrew J. Kennedy, Litigation News Associate Editor – October 14, 2015


Amendments to the Federal Rules of Civil Procedure, effective December 1, 2015, narrow the scope of discovery, shorten deadlines, and encourage judges’ involvement in managing cases. The ABA Section of Litigation is launching a 13-city Rules Amendments Roadshow program that highlights and discusses the changes to the rules. Section of Litigation leaders say the new amendments to the Federal Rules of Civil Procedure are the most significant change to federal civil practice in the last decade.

The New Proportionality Rule
Under the amended rules, discovery now hinges on a single key concept: proportionality. Amended Rule 26 adds language that states that a party is entitled to discovery that is relevant to claims and defenses and “proportional to the needs of the case . . .” The scope of discovery now incorporates several factors that should be considered to determine whether a discovery request is proportional to the needs of the case. They include the importance of the issues at stake in the case, 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 expense of the proposed discovery outweighs the likely benefit.

The proportionality rule signals a sea change in the scope of discovery. “The biggest change will be proportionality and getting rid of the phrase ‘reasonably calculated to lead to the discovery of admissible evidence’ in Rule 26,” says Michele D. Hangley, Philadelphia, PA, cochair of the Rules Amendments Roadshow and member of the Section’s Federal Practice Task Force. “Previously, the ‘reasonably calculated’ phrase had been moved to a less prominent place,” she says. “Now it has been removed from the rule entirely.” Removing the “reasonably calculated” phrase, Hangley suggests, “will make a difference in how parties justify the discovery that they are seeking.”

Speeding Up Cases
The amended rules also shorten up the deadlines in early case management. Under amended Rule 4, the court must dismiss an action if the complaint is not served within 90 days, shortening the period by 30 days from the old rule. Revised Rule 16 now requires a scheduling order 30 days earlier as well. Another feature of revised Rule 16 is that “it states that the court has the option of ordering that parties must request a conference before filing a motion to compel,” says Hangley. She suggests that this can decrease the amount of time spent on discovery motions.

These changes, designed to speed up case management, are tied to the narrowing of discovery. “The objective of the changes is to do discovery smarter and to focus case management on what will dispose of a case,” says Laurence F. Pulgram, San Francisco, CA, chair-elect of the Section of Litigation.

Leaders Go on the Road to Discuss New Changes
“The new rules are the best and likely the only opportunity of the decade to affect the cost and scope of discovery,” says Pulgram. As a result, the Section has developed a Rules Amendments Roadshow, entitled: “Hello ‘Proportionality,’ Goodbye ‘Reasonably Calculated’: Reinventing Case Management and Discovery Under the 2015 Civil Rules Amendments.” The roadshow is a 13-city program designed to highlight the new rules. The roadshow begins in November 2015, ahead of the December 1, 2015 effective date for the rules changes, and continues into spring 2016.

The Rules Amendments Roadshow is a result of collaboration with the Duke Law Center for Judicial Studies. “The Litigation Section, being institutionally interested in making discovery less expensive, partnered with Duke University to create this 13-city program on how these new rules are affecting civil practice,” observes Pulgram. “We are trying to collect the leading architects of the rules, judges, and [magistrate judges] in these locations around the country to engage in a dialogue and dive into the rules changes, and how the bar can use them to improve the way we litigate.”

At each location, Pulgram explains, there will be local judges, magistrate judges, and members of the defense and plaintiffs’ bars. “I think the Rules Roadshow will provide an opportunity to lawyers and judges to shape litigation practice going forward and powerful insight into how judges think about litigation and the cases they oversee,” says Beth L. Kaufman, New York, NY, cochair of the Rules Amendments Roadshow and the Section’s liaison to the ABA’s Commission on Women in the Profession. “It will be a very interactive dialogue to discuss the myriad of ways proportionality can be achieved among the judges and lawyers on the dais who practice in these courts.”

The Section of Litigation and Duke have created websites for the roadshow, with agendas, times, dates, and registration information. The roadshow begins New York, NY in November 2015. Litigation News will be providing additional coverage about these changes, including an in-depth look at the amended Federal Rules of Civil Procedure in its upcoming winter 2016 print edition.

Keywords: Federal Rules of Civil Procedure, discovery, Rule 26, proportionality, Rules Amendments Roadshow

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