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Amendments to the FRCP (continued)

Here are some additional summaries of changes effective today that were made to the other Federal Rules of Civil Procedure (Rules 34, 37, 55, and 84) not mentioned in last night's post.

Rule 34 - If a request for production was made before the Rule 26(f) conference it will now be due 30 days after the conference. Objections to requests have to be stated with specifity. A responding party can promise to produce ESI instead of allowing inspection.

Rule 37 - The provision barring sanctions for ESI lost because of the operation of a routine, good faith electronic information system, has been replaced. New language allows the court, in the event that ESI is lost because reasonble steps were not taken to preserve it in anticipation of litigation (and it can't be replaced), to order measures to cure any prejudice. However if a party acted with intent to deprive another party of the use of the ESI the court can presume that the lost information was unfavorable to the producing party (or instruct a jury to do so), or issue a default judgment. The comments note that counsel has a duty to become familiar with its clients systems and data (including social media) in order to judge whether or not steps taken to preserve data are reasonable. It is further stated that the new rule is not meant to follow cases that allow for the imposition of adverse inference sanctions where there has been negligence or gross negligence in data preservation. This may reflect the influence of Judge Lee Rosenthal on the amendments. Judge Rosenthal (S.D. Tex.) in Rimkus v. Cammarata held there was a requirement of bad faith for spoliation sanctions to be imposed, where Judge Shira Scheindlin (S.D.N.Y.) in Pension Committee of University of Montreal v. Bank of America Secs., found that gross negligence could suffice for the implementation of sanctions.

Rule 55 - A new amendment allows the court to set aside a final default judgment under Rule 60(b), whereas previously the Rule stated, "it may set aside a default judgment under Rule 60(b)." So if a default judgment doesn't make a final disposition of the claims of all parties, the court can change it without needing to find mistake, surprise, newly discovered evidence, fraud, or that the judgment is void, or other grounds listed under Rule 60(b).

Rule 84 - has been abrogated. It had referred counsel to forms used in an Appendix that showed the sort of simplicity and brevity that Rules aimed at. The comments note that the wide range of online sources, such as the United States Courts Administrative Office web site, makes this Rule obsolete. I think they have this site in mind,

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