Summary of 2015 Amendments to FRCP

Click on the headers below to see key changes and related details

RuleTitle/DescriptionKey Changes
1Scope and PurposeNew: Both (1) court and (2) parties should construe, administer and employ the rules to secure the just, speedy, and inexpensive determination of every action and proceeding.
Old: The rule addressed what court should do but did not mention party obligations.
RuleTitle/DescriptionKey Changes
4Summons
4(m)Time Limit for ServiceNew: Plaintiff must serve complaint within 90 days after it is filed.
Old: Previous time limit was 120 days.
New: The time limit for service does not apply to service of a notice under Rule 71.1(d)(3)(A). Rule 71.1 addresses condemnation of real or personal property.
RuleTitle/DescriptionKey Changes
16Pretrial Conferences; Scheduling; Management
16(b)(1)Scheduling… Scheduling OrderNew: Court must issue scheduling order after (A) receiving parties’ Rule 26(f) report or (B) consulting with the parties via direct simultaneous communication. Those communications may be in person, by telephone, or by more sophisticated electronic means.
Old: Under subsection (B), court was to consult with parties “by telephone, mail, or other means…”
16(b)(2)Scheduling… Time to IssueNew: Court must issue scheduling order within prescribed time limits unless court finds good cause for delay.
Old: Court must issue scheduling order within prescribed time limits.
New: Prescribed time limits are the earlier of 90 days after defendant was served or 60 days after any defendant has appeared.
Old: Prescribed time limits were 120 and 90 days.
16(b)(3)(B)(iii)Scheduling… Contents of the Order… Permitted ContentsNew: The scheduling order may provide for disclosure, discovery, or preservation of ESI.
Old: The scheduling order may provide for disclosure of ESI.
16(b)(3)(B)(iv)Scheduling… Contents of the Order… Permitted ContentsNew: The scheduling order may include agreements reached under Federal Rule of Evidence 502.
16(b)(3)(B)(v)Scheduling… Contents of the Order… Permitted ContentsNew: The scheduling order may direct that before moving for an order relating to discovery, movants must request a conference with the court.
RuleTitle/DescriptionKey Changes
26Duty to Disclose; General Provisions Governing Discovery
26(b)(1)Discovery Scope and Limits… Scope in GeneralNew: Parties may discover information about any non-privileged matter where the information is both:

  1. Relevant to any party’s claim or defense, and
  2. Proportional to the needs of the case.
Old: Rule 26 did not mention proportionality.
New: Factors to be considered to determine proportionality are:

  1. The importance of the issues at stake in the action;
  2. The amount in controversy;
  3. The parties’ relative access to relevant information;
  4. The parties’ resources;
  5. The importance of the discovery in resolving the issues; and
  6. Whether the burden or expense of the proposed discovery outweighs its likely benefit.

Proportionality factors have been moved to one location, at the beginning of the rule, and have been reordered. A previously implicit factor has been made explicit: the parties’ relative access to relevant information. The Committee Note concerning this aspect of the rule is long and detailed and should be read with care.

Old: Rule had listed examples of discoverable information (“existence, description, nature…”).
Old: Court previously could order, for good cause, discovery of any matter relevant to the subject matter involved in the action.
Old: Relevant but inadmissible information had been discoverable if discovery of the information had appeared to be reasonably calculated to lead to the discovery of admissible evidence.
26(b)(2)(C)(iii)Discovery Scope and Limits… Limitations on Frequency and Extent… When RequiredNew: Court must limit the frequency or extent of discovery if court determines that the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Old: Some proportionality factors had been here.
26(c)(1)(B)Protective OrdersNew: Court is explicitly authorized to issue protective orders that allocate expenses for disclosure or discovery. This change is not meant to suggest that cost-shifting should become a common practice.
26(d)(2)(A)Timing and Sequence of Discovery… Early Rule 34 Requests… Time to DeliverNew: A party may deliver Rule 34 requests to another party:

  1. More than 21 days after that party has been served, even though
  2. The parties have not yet had a Rule 26(f) conference.
26(d)(2)(B)Timing and Sequence of Discovery… Early Rule 34 Requests… When Considered ServedNew: Early Rule 34 requests are considered to have been served as of the date of the first Rule 26(f) conference, without regard to date of actual delivery.
26(d)(3)Timing and Sequence of Discovery… SequenceNew: Parties may stipulate to, or court may order, case-specific sequences of discovery.
Old: Court could order case-specific sequences of discovery; stipulations were not mentioned.
26(f)(3)(C)Conference of the Parties; Planning for Discovery… Discovery PlanNew: In their discovery plan, the parties must state their views and proposals on any issues about disclosure, discovery, or preservation of ESI.
Old: Previously parties only had to state their views and proposals on issues about disclosure of ESI.
26(f)(3)(D)Conference of the Parties; Planning for Discovery… Discovery PlanNew: In their discovery plan, the parties must state their views and proposals on issues about claims of privilege or protection including whether to ask court to include their agreement in a Federal Rule of Evidence 502 order.
Old: There was no reference to Federal Rule of Evidence 502 orders.
RuleTitle/DescriptionKey Changes
30Depositions by Oral Examination
30(a)(2)When a Deposition May Be Taken… With LeaveNew: When determining whether to grant leave to take a deposition, court needs to consider proportionality as set forth in Rule 26(b)(1).
30(d)(1)Duration; Sanction; Motion to Terminate or Limit… DurationNew: When determining whether to allow additional time for a deposition, court needs to consider proportionality as set forth in Rule 26(b)(1).
RuleTitle/DescriptionKey Changes
31Depositions by Written Questions
31(a)(2)When a Deposition May Be Taken… With LeaveNew: When determining whether to grant leave to take a deposition by written questions, court needs to consider proportionality as set forth in Rule 26(b)(1).
RuleTitle/DescriptionKey Changes
33Interrogatories to Parties
33(a)(1)In General… NumberNew: When determining whether to grant leave to serve more than 25 written interrogatories, court needs to consider proportionality as set forth in Rule 26(b)(1).
RuleTitle/DescriptionKey Changes
34Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
34(b)(2)(A)Procedure… Responses and Objections… Time to RespondNew: Party responding to Rule 26(d)(2) early document requests must deliver responses within 30 days of the Rule 26(f) conference.
34(b)(2)(B)Procedure… Responses and Objections… Responding to Each ItemNew: Parties objecting to document requests must specify the grounds for objecting.
Old: Parties could object to document requests but they were not required to specify grounds for the objections.
New: Responding parties may produce copies of documents or ESI instead of permitting inspection. The same deadlines apply either way.
34(b)(2)(C)Procedure… Responses and Objections… ObjectionsNew: Parties objecting to document requests must state, with each objection, whether they are withholding any responsive materials on the basis of that objection.
RuleTitle/DescriptionKey Changes
37Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
37(a)(3)(B)(iv)Motion for an Order Compelling Disclosure or Discovery… Specific Motions… To Compel a Discovery ResponseNew: Requesting party may bring motion to compel if responding party fails to:

  1. Produce documents,
  2. Respond that inspection will be permitted, or
  3. Permit inspection.
Old: Requesting party could bring motion to compel if responding party failed to:

  1. Respond that inspection would be permitted, or
  2. Permit inspection.
37(e)Failure to Preserve Electronically Stored InformationNew: Rule replaced entirely. New rule “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,” according to Committee Note.
Rule applies only to ESI.
Court takes action only if:

  1. ESI has been lost,
  2. The lost ESI should have been preserved in the anticipation or conduct of litigation,
  3. The party failed to take reasonable steps to preserve the ESI, and
  4. The ESI cannot be restored or replaced through additional discovery.
37(e)(1)If court finds that another party has been prejudiced by loss of the information, court may order measures no greater than necessary to cure the prejudice.
37(e)(2)If and only if court finds that the other party acted with intent to deprive another party of the information’s use in the litigation, court may take one of three actions:
37(e)(2)(A)Presume the lost information was unfavorable to the party;
37(e)(2)(B)Instruct jury that it may or must presume the lost information was unfavorable to the party; or
37(e)(2)(C)Dismiss action or enter a default judgment.
RuleTitle/DescriptionKey Changes
55Default; Default Judgment
55(c)Setting Aside a Default or a Default JudgmentChange not related to e-discovery.
RuleTitle/DescriptionKey Changes
84Abrogated Rule 84
Change not related to e-discovery.