United States: Amendments To The Federal Rules Of Civil Procedure

Last Updated: February 16 2016
Article by Richard A. Nessler

Amendments to the Federal Rules of Civil Procedure ("Federal Rules") covering discovery rules and exchange of information in civil lawsuits, which were adopted by the Supreme Court in April 2015 and accepted by Congress, took effect in December. The changes, which are the result of five years of review and debate, affect civil rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55 and 84. The amendments will govern all federal civil proceedings commenced on or after December 1, 2015, and all civil proceedings then pending "insofar as just and practicable." The overarching goal of the amendments is to secure a just, speedy and inexpensive determination of every federal civil action and proceeding. The new rules attempt to achieve this goal, in part, by limiting the amount of document discovery "proportional to the needs of the case," which is meant to curb overbroad document requests that traditionally drove up costs, and delay an early case management.8

Case Management

The changes to early case management focus on expediting the initial stages of litigation. The amendments that impact the surge of discovery emphasize proportionality and reasonableness and require more specificity in objecting to discovery requests. The amendments also directly address preservation and sanctions for spoliation of electronically stored information ("ESI").

Significant changes to the Federal Rules include, among others:

  1. Rule 1 has been amended to state that lawyers and parties as well as courts have an obligation to secure the just, speedy, and inexpensive determination of every action.
  2. The time for service of process under rules 4(m) is shortened from 120 days to 90 days.
  3. The time for holding the initial case management conference under rule 16(b) has been shortened by 30 days, and new topics for the Rule 26(f) and Rule 16 conferences have been added.
  4. The scope of discovery in Rule 26(b)(1) has been amended, and the need for proportional discovery tailored to the reasonable needs of the case has been highlighted.
  5. Rule 37(e) has been rewritten to address the preservation and loss of electronically stored information.

The purpose of the amendments are clear—to reduce delay and improve cooperation in civil litigation.

Amendments to Rules 1, 4 and 16

Federal Rule 1 is designed to improve cooperation and encourage active judicial case management. Rule 1 seeks to make it clear that the parties have an obligation to make litigation efficient, adding that the Rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding."9 The amended rule requires judges and lawyers to work cooperatively in controlling the expense and time demands of litigation.10 The amendments to Federal Rules 4 and 16 seek to reduce delay in the early stages of litigation through more active gradual case management and reduced timelines in distinct ways. Rule 4(m) reduces the time to serve a defendant with the complaint from 120 to 90 days.11 Rule 16(b)(2) reduces the time to issue a scheduling order to the earlier of 90 days (down from 120 days) after any defendant has been served with the complaint, or 60 days (down from 90 days) after any defendant has appeared.12 However, the rule permits that a court may set a later date for issuing the scheduling order upon a finding of "good cause." Rule 16(b)(3) identifies three additional topics for discussion and possible inclusion in the scheduling order: (i) the preservation of ESI; (ii) whether any agreement can be reached under FRE 502 pertaining to the disclosure of privileged information or work product protected material; and (iii) whether the parties should be required to request an informal conference with the court prior to filing any discovery motions.13

Amendments to Rule 26

The key change to Rule 26 replaces language that is often used to argue that the scope of discovery should be broad and crystalizes the concept of reasonable limits on discovery. Thus, the "reasonably calculated to lead to the discovery of admissible evidence," has been replaced with the language "and proportional to the needs of the case."14 The new rule requires attorneys to limit discovery requests to what is needed to prove a claim or defense and to eliminate unnecessary or wasteful discovery.15

Rule 26(b) also deleted language authorizing the court to "order discovery of any relevant subject-matter involved in the action." Rule 26(b)(1) now makes proportionality considerations part of the definition of the scope of discovery and reinforces parties' obligations to consider proportionality in making discovery requests, responses, and objections.16 The court will consider the following proportionality factors:

  • The importance of the issues at stake;
  • 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 burden or expense of the proposed discovery outweighs its likely benefit.

In addition, Rule 26(c)(1)(B) will authorize courts to issue cost-shifting orders, determining the "allocation of expenses" for certain discovery.17 Parties will need to consider these factors and draft discovery requests with the proportionality limits in mind and consider the costs associated with responding to the requests. In addition, in negotiating the scope of its response, the responding party should be prepared to discuss specifics about the burdens and expenses they assert.

Amendments to Rules 30, 31, 33 and 36

The initial proposal to these Federal Rules imposed numerical limits to discovery requests to encourage efficiency and cooperation through early case management. The August 2013 Rules had proposed reducing the presumptive limits on the number of depositions (from 10 to five depositions per party); length of depositions (from seven to six hours each); number of interrogatories (from 25 to 15); and number of requests for admission (from no limit to 25). But public comments opposed these limits and many feared that the proposed limits would become hard limits and deprive parties of evidence needed to prove their claims or defenses. The Committee withdrew the limits, concluding that the goals of proportionality and effective case management could be achieved through other rule changes. The Committee instead amended Rules 30, 31, and 33 to refer to Rule 26(b)(1) and incorporate its emphasis on proportionality.

Amendments to Rules 26(d), 34(b), and 37(a)

Amendments to three rules result in a number of changes to the timing of requests for production of documents ("RFPs") and substance and timing of responses to RFPs. Rule 26(d)(2) will now permit a party to serve RFPs in advance to the Rule 26(f) conference, but no earlier than 21 days after the receiving party was served in the litigation. RFPs served prior to a Rule 26(f) conference will be deemed to have been served at the first Rule 26(f) conference. Rule 34(b)(2) requires responding parties to (i) be more specific in objections to RFPs; (ii) state whether documents actually will be withheld pursuant to each objection; (iii) state whether they will produce copies or permit inspection; and (iv) complete production "no later than the time for inspection specified in the request or another reasonable time specified in the response."18 No more boilerplate objections are permitted. Rule 37(a)(3)(B)(iv) permits a party to move for an order compelling production if another party fails to produce documents.

Amendments to Rule 37(e)

Federal Rule 37(e) covers preservation issues regarding Electronically Stored Information ("ESI"). The amended Rule 37(e) adopts the common law principle that duty to preserve arises when litigation is reasonably anticipated. The rule now provides broad discretion for courts to cure prejudice caused by loss of ESI and resolves a circuit split as to when courts may impose more severe sanctions for failure to preserve ESI. The proposed rule as originally drafted applied to all types of discoverable information, but the final amendment is limited to ESI. The Committee decided to confine Rule 37(e) to ESI because "the law of spoliation for evidence other than ESI is well developed and longstanding, and should not be supplanted without good reason."19 Rule 37(e) provides that "If [ESI] that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to present it, and it cannot be restored or replaced through additional discovery" the court, if prejudice exists, may "order measures no greater than necessary to cure the prejudice."20

As the first step, therefore, a party moving for sanctions for failure to preserve ESI must show: (i) the relevant ESI "should have been preserved in the anticipation or conduct of litigation"; (ii) relevant ESI was lost because the party charged with safeguarding the lost ESI "failed to take reasonable steps to preserve" the information; and (iii) the lost ESI "cannot be restored or replaced through additional discovery."21 If this predicate showing is made, then the court " upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice. The amended rule requires only "reasonable steps" to preserve ESI. Perfection is not required and courts may consider the parties' resources and sophistication. If the loss of ESI results from a party's intent to deprive another party of the ESI's use in the litigation, the court may impose "very severe" sanctions, including: (i) presumption that the lost information was unfavorable to the jury; (ii) instruct the jury that it may or must presume the information was unfavorable to the party; or (iii) dismiss the action or enter a default judgment.

The amended rules and supporting documentation related to their recent adoption— including excerpts from the reports of the Judicial Conference Committee on Rules— are posted on the Judiciary's website at: www.uscourts.gov/rules-policies/current-rules-practice-procedure.


8 Fed. R. Civ. P. 26(b)15

9 Fed. R. Civ. P. 1

10 See Chief Judge John Roberts Annual Report of the Judiciary, at 6 (December 31, 2015).

11 Fed. R. Civ. P. 4(m)

12 Fed. R. Civ. P. 16(b)(2)

13 Fed. R. Civ. P. 16(b)(3)

14 Fed. R. Cir. P. 26

15 Chief Judge John Roberts Annual Report of the Judiciary, at 7 (December 31, 2015).

16 Fed. R. Civ. P. 26(b)(1)

17 Fed. R. Civ. P. 26(c)(1)(B)

18 Fed. R. Civ. P. 34(b)(2)

19 2015 Notes of Advisory Committee to Fed. R. Civ. P. 37

20 Fed. R. Civ. P. 37(e)

21 Id.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions