Form 35

Federal Rule of Civil Procedure 84 was abrogated on December 1, 2015. It provided that an Appendix of Forms to the FRCP be referenced to illustrate the brevity and simplicity the rules contemplated and that the Form suffice for the requirements of the Rules. The notes to the 2015 amendments state that the forms were no longer necessary because there are, "many excellent alternative sources for forms, including the website of the Administrative Office of the United States Courts, the websites of many district courts, and local law libraries".

Form 35 provides an outline for the terms of the agreement the parties are to reach after the Rule 26(f) Meet and Confer. District Courts still make this form available on their web site. See this version on the site of the District Court for the Northern District of Illinois. It has the following key elements:

1. States that the parties agree to make the disclosures under Rule 26(a).

2. Lists subjects for which discovery will be needed.

3. Gives a deadline by which discovery must be completed.

4. Sets limits on the number of interrogatories, requests for admission, and depositions.

5. Sets due dates for expert reports.

6. Provides for supplements to discovery under FRCP 26(e) when previously disclosed information is found to be incomplete or incorrect in some material respect.

7. Whether or not a conference is required with the court before a scheduling order is issued.

8. Sets a time by which additional parties can be joined and by which the pleadings can be amended.

9. Sets a time for the filing of dispositive motions.

10. Specifies whether or not a settlement is likely.

11. Gives a date by which witness and exhibit lists must be entered, and how long the period for making objections to them will be.

12. Gives a date on which the case will be ready for trial.

The District Court for District of Nebraska contains a version of Form 35 which is much more detailed. It requires the defendant to indicate if she intends to contest jurisdiction or venue, or assert immunity. Provides a section for listing the elements and factual application of each claim and defense, and shows how the opposing party disputes what is stated.

Most importantly, for our purposes, the Nebraskan version of Form 35 includes a lenghy section entitled, "Electronic Discovery Provisions". It addresses ESI preservation issues on the following points:

1. Whether only data which is available in the normal course of business should be disclosed.

2. The scope, cost and time for discovery beyond what is available in the normal course of business.

3. The format for the production.

4. Review of whether preservation measures are reasonable.

5. Persons responsible for preservation and any third parties that have access to the data.

6. The form and method of the notice to preserve.

7. How to insure compliance with preservation measures.

8. Will preservation require the interruption of routine business practice and data retention/destruction policies.

9. Methods to preserve data such as emails, active data in databases or voice mail.

10. How the cost of preservation should be allocated.

11. Procedure for modifying the preservation order if necessary.

#FRCP #Form35

The Intent and the Reality of the FRCP

Mary Mack, former Corporate Technology Counsel with Fios, Inc., was recently appointed the executive director of ACEDS. People planning to acquire the ACEDS eDiscovery certification might be interested to know that Mack is the author of A Process of Illumination: The Practical Guide to Electronic Discovery. While the edition I have was published in 2008, it could still serve as a good guide to the ACEDS perspective on eDiscovery.

In the first chapter of the book, "What Happens During Electronic Discovery?", Mack includes a chart with three fields "Description", "Intent"; and "Reality" for a dozen different Federal Rules of Civil Procedure related to eDiscovery: Rules 16(b); 26(a); 26(b)(2); 26(b)(5); 26(f); 33(d); 34(b); 37(e); 37(f); 45; and Form 35, in the context of how they were amended in 2006. For example on FRCP 26(f):

Description: Requires all parties to sit down together before discovery begins to agree on some form or protocol.

Intent: Rule encourages uniformity, structure and more predictable motion practice.

Reality: Opportunity to shift preservation costs if prepared for these discussions; otherwise opportunity to get painted into a corner.

The chart is a very good thumbnail sketch of how the FRCP applies to FRCP issues.

If you're looking to the book of a guide to her overall philosophy on eDiscovery, note that Mack begins her book emphasizing the need to issue a hold to preserve ESI as soon as litigation is threatened. She quotes Laura Kibbe, an ex-ediscovery counsel at Pfizer, advising 'Don't play hide the ball . . . Negotiate scope and need early on." She describes ESI as being multi-dimensional - not under the control of a single user, and usually not capable of being destroyed without a trace. Ken Withers of the Sedona Conference is quoted to endorse the importance of effective eDiscovery lowering costs, "More money is probably spent litigation e-discovery problems than in litigating class actions." ESI is fluid and pricey, and must be addressed with urgency.

The Chief Justice on eDiscovery

On December 31, 2015, Chief Justice Roberts' issued the "2015 Year-End Report on the Federal Judiciary". Roberts notes that the Advisory Committee that worked on the changes to the Federal Rules of Civil Procedure which became effective on December 1, 2015, had four main goals:

1. promote cooperation amongst attorneys.

2. focus discovery on resolving cases.

3. encourage the participation of judges in early case assessment.

4. "address serious new problems associated with vast amounts of electronically stored information."

Roberts remarks upon the changes to FRCP 16 and 26(f) which require parties to reach agreements on the discovery and preservation of ESI in case management plans and discovery conferences. He also discusses how the change to FRCP 37(e) allows courts to take measures to cure prejudice resulting from the failure to take reasonable precautions to preserve ESI when litigation is anticipated. Roberts notes that when ESI is lost because of intentional actions on the part of one of the parties, sanctions can be imposed, including adverse jury instructions or default judgments.

Perhaps just as interesting are the statistics cited in the Appendix to the Chief Justice's report. Cases filed in federal district courts declined 6% in 2015, and diversity cases (those having jurisdiction in federal courts because the parties are from different states, rather than because they involve issues regarding the Constitution or federal law) declined 14%. Bankruptcy cases fell more than 10%, but while criminal cases more or less held steady.

From the very top, the federal judiciary is getting the message that the changes to the FRCP should be used to encourage the trend towards reducing civil litigation. The most memorable part of Roberts' report is his comparison of contemporary civil legal disputes to the archaic practice of duelling. He admonishes that civil cases should not be allowed to "degenerate into wasteful clashes over matters that have little to do with achieving a just result."