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

What Amendments Weren't Made on December 1, 2015

There has been a lot of discussion about the amendments that were made to the Federal Rules of Civil Procedure on December 1, 2015, . . . .in webinars, news articles and internally at law firms. It's also interesting to note the changes to the Rules that were discussed, but not actually proposed by the Advisory Committee on Civil Rules. See page 171 of the Agenda Book of the Committee on Rules of Practice and Procedure from May 2015, (see: http://www.uscourts.gov/rules-policies/records-and-archives-rules-committees/agenda-books) , which is part of a report by the Advisory Committee to the Chair of the Standing Committee on the Rules of Practice and Procedure (Judge Sutton of the Sixth Circuit). The report notes that the committee considered changes to the Rules that would have changed to a requester pays system of discovery. Back in 1978, in Oppenheimer v. Sanders, the Supreme Court ruled that, "the presumption is that the responding party must bear the expense of complying with discovery requests, but he may invoke the district court's discretion under Rule 26 (c) to grant orders protecting him from 'undue burden or expense' in doing so". As the report notes, the current Federal Rules of Civil Procedure only direct the requester to pay for discovery as a kind of penalty (unjustified certification under FRCP 26(g) that a request was not made for an improper purpose or under 28 U.S.C. 1927 if party multiplies proceedings in any case unreasonably or vexatiously), or where there is undue burden (under FRCP 26(b)(2)(B) for not reasonably accessible ESI; a disproportionate burden under 26(b)(2)(C) on the responding party; or if a 26(c) protective order protects a party from undue burden or expense).

The report discusses the possibility of a 'loser pays' system in whichever party that didn't prevail in case would have to cover the costs of discovery. This system is used in the United Kingdom. It notes the influence of patent troll bills introduced in Congress which require requesters to pay after core information for a claim or defense is disclosed.

The committee raises the possibility that a requester pays system could solve the problem of over discovery, or perhaps be best if only applied to certain types of cases or certain types of discovery. It suggests that cost bearing need not be only discretionary (as it is now) but could be mandated on a party in certain situations. It would be possible to broaden 26(a) initial disclosures beyond the information needed for claims and defenses.

Intriguingly the report also suggests sampling of inaccessible ESI sources in order to see if the cost and usefulness of the retrieved data would justify the burden. That would create a need for some very quick forensic work on hard drives. Maybe in the future . ..

#FRCP #requesterpays