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Moore's Federal Practice, The Amendments to the Federal Rules of Civil Procedure

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This pamphlet provides a comprehensive resource for litigators who wish to understand the scope and significance of the December 1, 2015 amendments to the Federal Rules of Civil Procedure. These amendments are expected to have a significant impact for all federal litigators, particularly in the area of discovery. The amendments are intended to encourage a quicker and less expensive discovery process by promoting active judicial case management and increased cooperation among the parties. Additionally, the amendments incorporate the concept of proportionality to determine the initial scope of discovery, and introduce a national standard for sanctions when electronically stored information is lost. Affected rules include Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84.

The pamphlet features in-depth analysis by Professor Steven S. Gensler explaining the rule changes. From 2005 to 2011, Professor Gensler served as a member of the United States Judicial Conference Advisory Committee on Civil Rules, during which time he had a direct role in shaping the rule amendments. Professor Gensler was also a member of the Planning Committee for the 2010 Duke Conference on Civil Litigation, where many of the rule proposals had their start.

The pamphlet includes the full text of the rule amendments, with Advisory Committee notes. Additionally, it sets out several important Advisory Committee reports, to provide insight on the historical development of the rule proposals.

Authors / Contributors

Table of Contents

Introduction



A. THE HISTORY OF THE 2015 AMENDMENTS

§ 1.01P The 2010 Duke Conference

§ 1.02P Subcommittee Work

§ 1.03P 2013 Published Proposals



B. CASE MANAGEMENT

§ 1.04P Importance of Case Management (Rules 4 and 16)

§ 1.05P Getting the Case Moving Faster

§ 1.06P Encouraging “Live” Case Management Conferences

§ 1.07P Additional Issues to Consider Addressing in the Case
Management Order

§ 1.08P Encouraging Pre -motion Conferences for Discovery Motions



C. PARTY PLANNING, COMMUNICATION, AND COOPERATION

§ 1.09P Improving Pretrial Practice (Rules 1, 26(f) and 34)

§ 1.10P Cooperation and Rule 1

§ 1.11P Sending Document Requests Before the Rule 26(f) Meeting

§ 1.12P Additional Topics for the Rule 26(f) Discovery Planning Conference

§ 1.13P Specificity When Responding to Document Requests



D. DISCOVERY SCOPE, LIMITS, AND PROTECTIONS

§ 1.14P Overview of Changes to Scope of Discovery and Codification of Cost-Sharing Option in Protective Orders (Rule 26(b) (1), (c) )

§ 1.15P Addition of Proportionality to the Scope of Discovery

§ 1.16P Other Changes to Scope of Discovery

§ 1.17P Cost -Sharing Orders for Discovery (Rule 26(c) )



E. SANCTIONS FOR FAILURE TO PRESERVE ELECTRONICALLY STORED
INFORMATION


§ 1.18P Overview of Amended Sanctions Provision (Rule 37(e) )

§ 1.19P Purpose of Rule 37(e)

§ 1.20P Elimination of Prior “Safe Harbor ” Provision

§ 1.21P Requirements and Limits Under Rule 37(e)

§ 1.22P Sanctions to Cure Prejudice (Rule 37(e) (1) )

§ 1.23P Sanctions Requiring a Finding of Intent to Deprive (Rule 37(e) (2) )



F. OTHER AMENDMENTS EFFECTIVE DECEMBER 1, 2015

§ 1.24P Rule 4

§ 1.25P Rule 37(a)

§ 1.26P Rule 55(c)

§ 1.27P Rule 84



G. TEXT OF AMENDMENTS AND COMMITTEE NOTES

§ 1.28P Proposed Amendment to Rule 1

§ 1.29P Proposed Amendment to Rule 4

§ 1.30P Proposed Amendment to Rule 16

§ 1.31P Proposed Amendment to Rule 26

§ 1.32P Proposed Amendment to Rule 30

§ 1.33P Proposed Amendment to Rule 31

§ 1.34P Proposed Amendment to Rule 33

§ 1.35P Proposed Amendment to Rule 34

§ 1.36P Proposed Amendment to Rule 37

§ 1.37P Proposed Amendment to Rule 55

§ 1.38P Proposed Amendment to Rule 84



Appendix I Report to the Chief Justice of the United States on the 2010 Conference on
Civil Litigation



Appendix II Report to the Standing Committee on Rules of Practice and Procedure, May
8, 2013



Appendix III Report to the Standing Committee on Rules of Practice and Procedure,
June 14, 2014