On December 1, 2015, several significant changes to the Federal Rules of Civil Procedure went into effect. These changes were made after five years of consideration, debate, and input from various authorities in the legal community. In 2010, the Advisory Committee on Civil Rules held a symposium on civil litigation that included federal and state judges, academics, and both plaintiff and defense lawyers. The consensus was that civil litigation had become too contentious, too time consuming, and too expensive. Access to our court system was becoming more and more difficult for civil litigants. The Advisory Committee spend the next five years looking at how to address these problems through procedural reforms.
The December 2015 changes to the Federal Rules of Civil Procedure encourage cooperation among counsel during the litigation process, focus discovery on what is truly necessary to a case, involve judges in cases earlier to facilitate more active case management efforts, and address the growing issues arising out of today’s vast amount of electronically stored information. In his year-end report on the judiciary, Chief Justice Roberts discussed the changes in great detail. His report made clear that the rules were amended to achieve these stated purposes, and that it is the expectation that lawyers and the courts implement these changes in a manner that achieves prompt and efficient resolution of cases.
So, what are the recent changes to the Federal Rules of Civil Procedure?
First, discovery will commence earlier under the new rules. Rule 16(b)(3) changed the deadline for courts to issue scheduling orders. Under the new version of the rule, the scheduling order must be issued 90 days, rather than 120 days, after a defendant has been served. This shortens the deadline for holding the Rule 26(f) initial conference which must occur 21 days prior to the scheduling order. Parties are also allowed to serve requests for production earlier in the case. Under the new Rule 26(d)(2), parties may serve requests for production prior to the initial conference. Requests for production can now be served as early as 21 days after service of the summons and complaint. A party responding to these requests, however, will still have until 30 days after the initial conference to respond.
Second, the new rules require more meaningful responses to requests for production. Rule 34 now requires parties to identify any grounds for objection “with specificity.” Previously, a party only had to state the grounds for an objection. Presumably, gone are the days of boilerplate objections with the following qualification: “subject to these objections, responsive documents are attached.” Not only must a party specifically identify any grounds for objection, it now has to specifically identify whether documents are being withheld. Rule 34(b)(2)(C) has been amended to require that a party identify how its responses are qualified or limited and whether any responsive documents were not searched for and produced.
Third, parties can now seek more informal involvement from the court before filing discovery motions. Under the new Rule 16(b)(3)(B)(v), the case scheduling order can now include a requirement that prior to filing a discovery motion, the moving party can request a conference with the judge. The idea is that perhaps early intervention and involvement by the judge may resolve the issue and prevent the need for costly and time consuming motions.
Fourth, it is now more difficult to obtain sanctions related to the preservation, or lack thereof, of electronically stored information. The new rules establish a national standard on this issue, where previously the circuit courts had differed. The new Rule 37(e) limits the remedies a court can impose for electronically stored information that should have been preserved but was lost. The court must find (a) that a party did not take reasonable steps to preserve the information, (b) that the information cannot be restored or replaced through additional discovery, and (c) prejudice to the opposing party. Only with a finding of these factors can a court impose remedial measures. However, the measures can be no greater than necessary to cure the prejudice. Under the new rule, an adverse inference jury instruction or other sanctions are only available if a court finds that a “party acted with the intent to deprive another party of the information’s use in the litigation.”
Finally, and perhaps most significantly, the new rules eliminate the ever popular discovery phrase, “reasonably calculated to lead to the discovery of admissible evidence” from Rule 26(b)(1). The new version of the rule still addresses the scope of discovery. Parties are entitled to discovery of “any non-privileged information relevant to any party’s claim or defense.” However, there is now a new proportionality requirement. Under the new rule, relevant information must also be “proportional to the needs of the case.” The new rule lists six factors to consider in analyzing the proportionality issue: (1) the issues at stake in the action, (2) the amount in controversy, (3) the parties’ relative access to the relevant information, (4) the parties’ resources, (5) the importance of the discovery in resolving the issues in the case, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.
This leads to the important question: How are courts applying these new rules? Courts have only recently begun interpreting these changes to the Federal Rules of Civil Procedure. As time passes, we will have more information regarding how the new rules will be applied by the courts. The bulk of case law, although still sparse, has focused on the changes to Rules 26 and 37.
With respect to the amended Rule 26, at least initially, it seems Ninth Circuit courts are struggling to incorporate the intent expressed by Chief Justice Roberts and the Advisory Committee. In its Note to the amended Rule 26, the Advisory Committee encouraged courts to “be more aggressive in identifying and discouraging discovery overuse.” At least one case has done a nice job at explaining and implementing the rationale and purpose of the new rules. In Morrison v. Quest Diagnostics, Inc., the United States District Court for the District of Nevada outlined, in detail, the background of the amendment to Rule 26. In accordance with the new version of the rule, the court found much of the discovery at issue to be patently overbroad. Moving forward, this case will be a good source for citing to the history and purpose of the amended Rule 26.
Other courts have been less stringent in applying the new discovery standards. In at least one opinion, although the court recognized the changes to Rule 26, the court also referenced and applied the deleted “reasonable calculated” standard to its analysis. The case did not apply the proportionality analysis or the factors outlined in the new rule. Similarly, a District Court in California cited the new version of Rule 26 in its entirety. It then analyzed only the issue of relevance and also did not discuss proportionality or the factors outlined in the new rule. The court did, however, significantly limit the discovery requested in the case and recognized the role of judges in limiting the frequency and extent of discovery. With respect to the amended Rule 37, it seems Ninth Circuit courts have been willing to use discretion in determining the appropriate sanctions and remedies in cases involving electronically stored information. In FiTeq, Inc. v. Venture Corp., the United States District Court for the Northern District of California appears to have recognized the limitations placed on courts by the new Rule 37(e) in issuing sanctions related to improper handling of ESI. Although the analysis is limited, the court in that case failed to implement the sanctions requested and denied a party’s motion in limine. The court really focused on the question raised in the new Rule 37(e), as to whether the ESI at issue could be restored or replaced. Another court in California recognized the limitations of the new Rule 37(e) by narrowly tailoring appropriate sanctions to fit the specific circumstances of the case. Although the court recognized that spoliation had occurred, it allowed the party requesting sanctions to only present evidence necessary to cure the spoliation, rather than allowing an adverse inference jury instruction. By doing so, the court implemented the intent of the Advisory Committee of more judicial involvement in the discovery process.
Again, it remains to be seen how courts will continue to interpret and implement these changes. It is also important to remember that the State of Washington has not yet adopted these changes to its state court Civil Rules. When citing to federal court cases in state court discovery disputes, it is important to recognize whether the federal court is applying and analyzing the new version of the Federal Rules of Civil Procedure.
For more information on the December 2015 changes to the Federal Rules of Civil Procedure, you can access Chief Justice Robert’s 2015 Year-End Report on the Federal Judiciary at https://www.supremecourt.gov/publicinfo/year-end/2015year-endreport.pdf.
 Advisory Committee Note to Rule 26 at p. 3.
 Morrison v. Quest Diagnostics Inc., 214CV01207RFBPAL, 2016 WL 355120 (D. Nev. Jan. 27, 2016).
 See, Gibson c. SDCC, 213CV01379RFBPAL, 2016 WL 845308, at *3 (D. Nev. Mar. 2, 2016).
 See, Roettgen v. Foston, 13CV1101 GPC BGS, 2013 LEXIS 60047 (S.D. Cal. Sept. 23, 2013).
 Fiteq Inc v. Venture Corp., 13-CV-01946-BLF, 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016).