«1 Rule 1. Scope and Purpose 2 These rules govern the procedure in all civil actions 3 and proceedings in the United States district courts, except 4 ...»
PROPOSED AMENDMENTS TO THE
FEDERAL RULES OF CIVIL PROCEDURE ∗
1 Rule 1. Scope and Purpose
2 These rules govern the procedure in all civil actions
3 and proceedings in the United States district courts, except
4 as stated in Rule 81. They should be construed, and
5 administered, and employed by the court and the parties to
6 secure the just, speedy, and inexpensive determination of 7 every action and proceeding.
Committee Note ∗ New material is underlined; matter to be omitted is lined through.
The proposed amendments were approved by the Judicial Conference Committee on Rules of Practice and Procedure in May 2014, and forwarded to the Judicial Conference for consideration during its September 2014 session. If approved by the Conference, the proposed amendments will be transmitted to the Supreme Court. The Court will then consider the proposals and, if it concurs, officially promulgate the revised rules by order before May 1, to take effect no earlier than December 1 of the same year unless Congress enacts legislation to reject, modify, or defer the pending rules.
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This amendment does not create a new or independent source of sanctions. Neither does it abridge the scope of any other of these rules.
FEDERAL RULES OF CIVIL PROCEDURE 31 Rule 4. Summons 2 ***** 3 (m) Time Limit for Service. If a defendant is not served 4 within 12090 days after the complaint is filed, the 5 court — on motion or on its own after notice to the 6 plaintiff — must dismiss the action without prejudice 7 against that defendant or order that service be made 8 within a specified time. But if the plaintiff shows 9 good cause for the failure, the court must extend the 10 time for service for an appropriate period. This 11 subdivision (m) does not apply to service in a foreign 12 country under Rule 4(f) or 4(j)(1) or to service of a 13 notice under Rule 71.1(d)(3)(A).
Subdivision (m). The presumptive time for serving a defendant is reduced from 120 days to 90 days. This
4 FEDERAL RULES OF CIVIL PROCEDUREchange, together with the shortened times for issuing a scheduling order set by amended Rule 16(b)(2), will reduce delay at the beginning of litigation.
Shortening the presumptive time for service will increase the frequency of occasions to extend the time for good cause. More time may be needed, for example, when a request to waive service fails, a defendant is difficult to serve, or a marshal is to make service in an in forma pauperis action.
The final sentence is amended to make it clear that the reference to Rule 4 in Rule 71.1(d)(3)(A) does not include Rule 4(m). Dismissal under Rule 4(m) for failure to make timely service would be inconsistent with the limits on dismissal established by Rule 71.1(i)(1)(C).
The provision for consulting at a scheduling conference by “telephone, mail, or other means” is deleted.
A scheduling conference is more effective if the court and parties engage in direct simultaneous communication. The conference may be held in person, by telephone, or by more sophisticated electronic means.
8 FEDERAL RULES OF CIVIL PROCEDUREThe time to issue the scheduling order is reduced to the earlier of 90 days (not 120 days) after any defendant has been served, or 60 days (not 90 days) after any defendant has appeared. This change, together with the shortened time for making service under Rule 4(m), will reduce delay at the beginning of litigation. At the same time, a new provision recognizes that the court may find good cause to extend the time to issue the scheduling order.
In some cases it may be that the parties cannot prepare adequately for a meaningful Rule 26(f) conference and then a scheduling conference in the time allowed. Litigation involving complex issues, multiple parties, and large organizations, public or private, may be more likely to need extra time to establish meaningful collaboration between counsel and the people who can supply the information needed to participate in a useful way. Because the time for the Rule 26(f) conference is geared to the time for the scheduling conference or order, an order extending the time for the scheduling conference will also extend the time for the Rule 26(f) conference. But in most cases it will be desirable to hold at least a first scheduling conference in the time set by the rule.
Three items are added to the list of permitted contentsin Rule 16(b)(3)(B).
The order may provide for preservation of electronically stored information, a topic also added to the provisions of a discovery plan under Rule 26(f)(3)(C).
Parallel amendments of Rule 37(e) recognize that a duty to preserve discoverable information may arise before an action is filed.
FEDERAL RULES OF CIVIL PROCEDURE 9The order also may include agreements incorporated in a court order under Evidence Rule 502 controlling the effects of disclosure of information covered by attorneyclient privilege or work-product protection, a topic also added to the provisions of a discovery plan under Rule 26(f)(3)(D).
Finally, the order may direct that before filing a motion for an order relating to discovery the movant must request a conference with the court. Many judges who hold such conferences find them an efficient way to resolve most discovery disputes without the delay and burdens attending a formal motion, but the decision whether to require such conferences is left to the discretion of the judge in each case.
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21 documents or other tangible things and the 22 identity and location of persons who know of 23 any discoverable matter. For good cause, the 24 court may order discovery of any matter relevant 25 to the subject matter involved in the action.
26 Relevant information need not be admissible at 27 the trial if the discovery appears reasonably 28 calculated to lead to the discovery of admissible 29 evidence. All discovery is subject to the 30 limitations imposed by Rule 26(b)(2)(C).
31 (2) Limitations on Frequency and Extent.
89 ***** 90 (f) Conference of the Parties; Planning for Discovery.
91 ***** 92 (3) Discovery Plan. A discovery plan must state the
Information is discoverable under revised Rule 26(b)(1) if it is relevant to any party’s claim or defense and is proportional to the needs of the case. The considerations that bear on proportionality are moved from present Rule 26(b)(2)(C)(iii), slightly rearranged and with one addition.
Most of what now appears in Rule 26(b)(2)(C)(iii) was first adopted in 1983. The 1983 provision was explicitly adopted as part of the scope of discovery defined by Rule 26(b)(1). Rule 26(b)(1) directed the court to limit the frequency or extent of use of discovery if it determined that “the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.” At the same time, Rule 26(g) was added. Rule 26(g) provided that signing a discovery request, response, or objection certified that the request, response, or objection was “not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.” The parties thus shared the responsibility to honor these limits on the scope of discovery.
The 1983 Committee Note stated that the new provisions were added “to deal with the problem of overdiscovery. The objective is to guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry. The
18 FEDERAL RULES OF CIVIL PROCEDUREnew sentence is intended to encourage judges to be more aggressive in identifying and discouraging discovery overuse. The grounds mentioned in the amended rule for limiting discovery reflect the existing practice of many courts in issuing protective orders under Rule 26(c)....
On the whole, however, district judges have been reluctant to limit the use of the discovery devices.” The clear focus of the 1983 provisions may have been softened, although inadvertently, by the amendments made in 1993. The 1993 Committee Note explained: “[F]ormer paragraph (b)(1) [was] subdivided into two paragraphs for ease of reference and to avoid renumbering of paragraphs (3) and (4).” Subdividing the paragraphs, however, was done in a way that could be read to separate the proportionality provisions as “limitations,” no longer an integral part of the (b)(1) scope provisions. That appearance was immediately offset by the next statement in the Note: “Textual changes are then made in new paragraph (2) to enable the court to keep tighter rein on the extent of discovery.” The 1993 amendments added two factors to the considerations that bear on limiting discovery: whether “the burden or expense of the proposed discovery outweighs its likely benefit,” and “the importance of the proposed discovery in resolving the issues.” Addressing these and other limitations added by the 1993 discovery amendments, the Committee Note stated that “[t]he revisions in Rule 26(b)(2) are intended to provide the court with broader discretion to impose additional restrictions on the scope and extent of discovery....”
FEDERAL RULES OF CIVIL PROCEDURE 19The relationship between Rule 26(b)(1) and (2) was further addressed by an amendment made in 2000 that added a new sentence at the end of (b)(1): “All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii)[now Rule 26(b)(2)(C)].” The Committee Note recognized that “[t]hese limitations apply to discovery that is otherwise within the scope of subdivision (b)(1).” It explained that the Committee had been told repeatedly that courts were not using these limitations as originally intended. “This otherwise redundant cross-reference has been added to emphasize the need for active judicial use of subdivision (b)(2) to control excessive discovery.” The present amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections.
Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.
Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.
20 FEDERAL RULES OF CIVIL PROCEDUREThe parties may begin discovery without a full appreciation of the factors that bear on proportionality. A party requesting discovery, for example, may have little information about the burden or expense of responding. A party requested to provide discovery may have little information about the importance of the discovery in resolving the issues as understood by the requesting party.
Many of these uncertainties should be addressed and reduced in the parties’ Rule 26(f) conference and in scheduling and pretrial conferences with the court. But if the parties continue to disagree, the discovery dispute could be brought before the court and the parties’ responsibilities would remain as they have been since 1983. A party claiming undue burden or expense ordinarily has far better information — perhaps the only information — with respect to that part of the determination. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The court’s responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.
The direction to consider the parties’ relative access to relevant information adds new text to provide explicit focus on considerations already implicit in present Rule 26(b)(2)(C)(iii). Some cases involve what often is called “information asymmetry.” One party — often an individual plaintiff — may have very little discoverable information. The other party may have vast amounts of information, including information that can be readily
FEDERAL RULES OF CIVIL PROCEDURE 21retrieved and information that is more difficult to retrieve.
In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.