3 Ways FRCP Amendments Could Affect Companies
By Rebekah Mintzer
December 1, 2015
It’s a big week for many in-house lawyers, outside attorneys and others concerned with litigation and e-discovery. Dec. 1 marks the first day that the first amendments to the Federal Rules of Civil Procedure in almost a decade will be operational. Since the last FRCP amendments came out in 2006, a lot has changed—for instance, the amount of electronic data produced by parties has grown exponentially.
The amendments, which were developed by an advisory committee of the Judicial Conference of the U.S. and vetted by the U.S. Supreme Court, seek to update litigation processes, particularly in the area of e-discovery. Though it remains to be seen how the amended rules will function in practice, here are three of many possible ways they may influence the work of in-house counsel and their colleagues involved in litigation:
Speeding Up the Processes
The FRCP amendments are based around an understanding that no one likes their discovery and litigation processes to be long and dragged out. “Basically, the objective behind all the amendments is to expedite timely case management and to reduce delays in litigation as well as in production and also to reduce the costs and burdens associated with litigation and high volume document production,” says Georgia Thompson, an associate at law firm Richman Greer.
The emphasis on collaborating for speedier litigation starts at the very beginning, the amendments to Rule 1 of the FRCP. Rule 1 has been modified to add a reference to the court and the parties when explaining how rules should be construed to make litigation faster, less expensive and more fair.
“What the committee is saying is that we all are in this together,” says Allan Joseph, a partner at law firm Fuerst Ittleman David & Joseph. “We all have to work—no matter how much it might not be in the interest of our client—we now all have the burden of making sure we run our cases so we can get a just and speedy determination.”
The amendments get specific about reducing time that it takes to complete certain processes in litigation. Changes to Rule 4 of the FRCP try to get litigation started faster, by reducing the time to serve a defendant from 120 days to 90 days. Rule 16 has been changed as well, making courts issue scheduling orders either 90 days after a defendant has been served or 60 days after the defendant has appeared, whichever is shorter.
Determining When ESI Spoliation Has Actually Happened
There are many reasons that a party might not be able to provide electronically stored information in e-discovery. There could be a technology problem or a deletion policy that was carried out before a company could anticipate litigation was on its way. New amendments to Rule 37 of the FRCP take into account the possibility that a party may lose information, not because the attorneys believed there was something to hide, but simply because, life happens.
The amendments could help parties avoid spoliation claims and resulting sanctions. “Before, the courts were able to impose those kinds of sanctions even where parties that failed to preserve had no bad intent,” says Thompson. “You could say that now the amendments have laid out an ‘if this, then that.’”
The changes to Rule 37 create a framework and steps to follow for a court to determine whether a party can be deemed to have intentionally failed to provide ESI. The process includes looking at whether the party took “reasonable steps,” but doesn’t expect preservation of data to be perfect.
Adding Transparency to Objections
“The rule that I think is getting the least attention but will have a far bigger impact than anyone realizes is Rule 34,” says Clifford Nichols, a senior counsel at Day Pitney. Rule 34 governs objections by the parties to requests for production of documents and ESI. The amendments change Rule 34 to ask the party objecting to a discovery request to provide specific information about their grounds for objecting—meaning that general responses like that the request is “overly broad” may no longer hold water. “Gone is the boilerplate objection,” Nichols notes.
The relevant party will also have to reveal whether or not new documents are being withheld from discovery based on the objection at hand. This will hopefully have the effect of signaling which objections may be worth pursuing, and which won’t result in getting any new information anyway, saving time and energy for all parties. “The disputes that really matter will be highlighted by these objections,” says Nichols “rather than the requesting party having to sift through a mountain load of objections and then trying to determine which ones really matter to them.”