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.

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