Recent revisions to the Federal Rules of Civil Procedure are real game changers aimed at reducing delays at the beginning of litigation.
Chief among what’s impacted by these changes are early judicial case management, the scope of discovery and the preservation of electronically stored information, according to B. Jay Yelton III, a partner at Warner Norcross & Judd LLP and co-chair of the firm’s Data Solutions Practice Group.
Yelton and a team from Warner Norcross recently led a half-day symposium, which included a panel discussion on changes to the FRCP with Hon. Paul L. Maloney of the Western District Court of Michigan and attorneys Scott Carvo and Andrea Bernard. The panel used a case study to explore how the rule amendments would play out in a litigation scenario from the perspectives of a plaintiff, a defendant and from the bench.
The field has been changed in terms of the scope of discovery,” Maloney said. “One of the driving forces behind the amendments is the cost of litigation. Given the tenor of the new rules, I’m looking for lawyer participation and communication very early – and certainly by the time you reach me.”
A video of this panel discussion is online and available for playback at http://wnj.com/frcp-video/.
Yelton points to a revision to Rule 26 that allows discovery to start earlier as a key change. The two sides in a case can now submit a Request for Production of Documents 21 days after the lawsuit has been filed, even if this is before the discovery kick-off at the initial pretrial conference. Previously, a Request for Production could not be filed until the pretrial conference – usually three to four months after the lawsuit was filed.
This doesn’t mean that responses to requests for documents are due before the pretrial conference,” Yelton explained. “It does, however, give both the plaintiff and the defendant a better idea much earlier on of the types of discovery information that the other side is looking for and that side’s theories.”
Also under the rule changes, the initial pretrial conference must involve direct simultaneous communication – whether in person, by phone or by videoconference – to avoid delays created by correspondence.
It also gives the attorneys on both sides and the judge in the case the opportunity to have an informed discussion about discovery at the pretrial conference,” he said.
Yelton also points to the shortened time periods for serving a defendant and for the court to issue a scheduling order – both have gone from 120 days to 90 – as important changes.
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Securing a ‘just, speedy and inexpensive determination’ is now a responsibility of the parties, not just the court,” he said.
The revised rules also limit discovery to what is reasonable and proportional to the needs of the case – both in terms of scope and costs of production of documents – in an attempt to limit ever-increasing discovery costs.
Another important change: Federal courts now have ways to address failures to preserve electronically stored information. Previously, they were merely cautioned against imposing sanctions for a “good faith failure” to properly preserve discoverable electronically stored information.
If such information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it – and the information cannot be restored or replaced through additional discovery – the court:
Upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice
Only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation, may presume that lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable to the party or dismiss the action or enter a default judgment.
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This rule addition certainly adds teeth to the importance of preserving electronic information,” Yelton said. “It also puts an onus on the courts to determine the extent to which the party was on notice that litigation was likely and that the information would be relevant.”
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