As we posted earlier this month, amendments to the Federal Rules of Civil Procedure ("Rules") are effective December 1, 2015. The amendments apply to newly filed cases, as well as pending cases "insofar as just and practicable." The amendments are expected to impact numerous aspects of litigation including service of process, discovery (including electronically stored information ("ESI")), default judgments, and possibly pleadings requirements in patent cases. The following is a summary of changes to the Rules:

Rule 1:  Requires parties, as well as courts, to construe, administer, and employ the Rules in a manner "to secure the just, speedy, and inexpensive determination of every action and proceeding." The Committee notes that: "Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure."

Rule 4(m): Allows 90 days—instead of the previous 120-day limit—to serve the summons and complaint.

Rule 16:  Reduces the time to enter scheduling orders to the earlier of 90 days (previously 120 days) after a defendant has been served or 60 days (previously 90 days) after a defendant has made an appearance.  Rule 16(b)(2). Scheduling orders may include preservation provisions and clawback agreements (FRE 502) and direct parties to request a conference with the court before filing discovery motions. Rule 16(b)(3).

Rule 26(b)(1): "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claims or defense and proportional to the needs of the case . . . ." Replaces former definition of the scope of discovery "[r]elevant information need not be admissible . . . if the discovery appears reasonably calculated to lead to the discovery of admissible evidence" with "[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable." Committee notes a party may not "refuse discovery simply by making a boilerplate objection that it is not proportional."

Rules 26(b)(2) and 34(b)(2)(A): Early requests for production –prior to the 26(f) conference- may be served, however, the responding party has 30 days after the first 26(f) conference to respond.

Rule 26(c)(1)(B): Protective orders may shift the cost of discovery. Committee notes this change does not "imply that cost-shifting should become a common practice." Parties should assume the "responding party ordinarily bears the costs of responding."

Rule 34: Boilerplate objections are prohibited and objections must "state with specificity the grounds for objecting" and "whether any responsive materials are being withheld." Committee notes: "An objection may state that a request is overbroad, but . . . should state the scope that is not overbroad." Furthermore, an objection that states the date range, scope of sources or search terms used "qualifies as a statement that the materials have been 'withheld.'"

Rule 37(e): Creates a uniform standard for spoliation sanctions and curative measures where ESI "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 it cannot be restored or replaced through additional discovery." If another party is prejudiced by the loss of the ESI, a court "may order measures no greater than necessary to cure the prejudice." Rule 37(e)(1). Where the party acted with intent to deprive another party of the ESI, a court may (A) "presume that the lost information was unfavorable to the party"; (B) "instruct the jury that it may or must presume the information was unfavorable to the party"; or (C) "dismiss the action or enter a default judgment." Rule 37(e)(2). The Committee notes "this rule recognizes that 'reasonable steps' to preserve suffice; it does not call for perfection."

Rule 55(c): Clarifies that a court may set aside a final default judgment under Rule 60(b).

Rule 84: Now abrogated in its entirety. This rule had stated that "the forms in the Appendix suffice under these rules." As we commented on in our earlier post, the abrogation of Rule 84 may allow courts to find that bare-bones patent complaints under Form 18 are insufficient, and require that direct infringement allegations comply with the Supreme Court's Iqbal and Twombly precedent.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.