Steve Harvey Law Turns Two; Federal Rules Amendments Take Effect

Wow! It’s been two years to the day since I opened Steve Harvey Law LLC, and we are still here, representing clients in diverse matters, and growing the client base and the team.

If there’s one thing I have learned in the past two years, it’s that the key to law firm success over time is keeping true to core principles: integrity, service to clients, respect, collegiality, and the pursuit of excellence. By adherence to these principles we deliver great value to our clients.

As I begin my third year at Steve Harvey Law, I am grateful for the many friends and clients I have worked with, and the many I continue to work with! I wish you all the best and happiest times as we get ready to close out 2015.

As if to commemorate our law firm anniversary, the federal judiciary rolled out the newest set of amendments to the Federal Rules of Civil Procedure effective December 1, 2015. Originally enacted in 1938, the Rules govern civil proceedings in United States federal courts. Many state courts also look to them for guidance. They are of great interest to those of us who represent clients in lawsuits for business or principle.

Over the years, the Rules have been amended 37 separate times in varying degrees of importance to address issues affecting federal litigation. This most recent set (affecting Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84) attempts to fix some of what is perceived to be wrong with the discovery process, i.e., exchange of written information, documents, and electronic materials between parties in litigation. Discovery is widely viewed as the most expensive part of litigation.

Speaking very broadly, plaintiffs generally want more and defendants (such as corporations) generally want less discovery. These interests had a chance to influence the amendments, through comments ranging from civil rights advocates like the NAACP to business interests such as the U.S. Chamber of Commerce.

The biggest thing in the new Rules is “proportionality” in discovery. Except that it isn’t new; federal courts were always able to disallow discovery not proportionate to the needs of the case. But proportionality is now being given much more emphasis. Indeed, the scope of discovery in Rule 26 has been revised to put proportionality on a par with relevance.

New Rule 26 provides: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, 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.

Everything in italics is new to Rule 26, but these are familiar concepts in federal litigation. The question is whether the proportionality emphasis will make much of a difference in practice. Many commentators are skeptical that the new emphasis will have any significant effect, because most courts and litigators have long taken these factors in consideration.

Another change to Rule 26 is the elimination of the concept that relevant information need not be admissible to be discoverable as long as it is “reasonably calculated to lead to the discovery of admissible evidence.” That famous legal phrase used to settle many a discovery dispute is no more. The Rule now simply provides, after the language quoted two paragraphs above: “Information within this scope of discovery need not be admissible in evidence to be discoverable.”

Rule 26 as amended also permits a party to serve Rule 34 discovery requests more than 21 days after service of the summons and complaint and well in advance of the Rule 26(f) conference, but the time for responding does not begin until the Rule 26(f) conference. The thinking is that serving Rule 34 requests early could ensure productive Rule 26(f) conferences. No other discovery requests may be served before the Rule 26(f) conference.

If the changes to Rule 26 favor parties opposing greater discovery, changes to Rule 34 should make it harder for them to hide behind a smoke screen of objections. New Rule 34 provides that objections must be stated with “specificity” and “the production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” In an effort to eliminate the last great refuge of scoundrels, new Rule 34(b)(2)(C) provides that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.” These changes should cut down on discovery deficiency letters.

Rule 16 includes several common sense changes, including elimination of the provision for consulting at a scheduling conference by “telephone, mail, or other means.” Courts and parties are now expressly required to confer in person, by phone, or other means of direct simultaneous communication.

New Rule 37 authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. This sounds more severe than it is in reality. It requires a finding of “prejudice to another party from loss of the information,” as a condition to any sanctions for failing to preserve electronically stored information, and then no “greater than necessary to cure the prejudice.” It reserves the more drastic sanctions of adverse inferences, jury instructions, and dismissals and defaults “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation.” These standards are new to Rule 37, but well known to practitioners as the legal standard in effect through the case law for years.

Other changes are made to Rules 1, 4, 30, 31, 37, 55, and 84. Anyone who wants a good overview of all the changes should read the memorandum submitted on September 26, 2014, by Judge John D. Bates of the Judicial Conference of the United States to the Supreme Court. It includes the relevant commentary from the Committee on Rules of Practice and Procedure of the Judicial Conference.  A copy of Judge Bates’ memo can be found here.

For those of you who just can’t get enough of the new amendments to the Federal Rules, the American Bar Association Section of Litigation and the Duke Law Center for Judicial Studies are jointly presenting a 13-city series of three-hour presentations, which you can read about here. The next session is December 3 in St. Louis.

Or you can call me and I will be happy to discuss your questions. Better yet, stop by for a coffee and help me celebrate the start of my third year at Steve Harvey Law.

 

Steve Harvey

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December 2, 2015