FRCP & E-Discovery: The Layman's Guide
Rules 4(m) & 16: Timing is Everything
One way to ensure Rule 1’s call for a “just, speedy, and inexpensive” resolution is moving up the time frame in which things have to be completed. This is where Rules 4 and 16 come in: with the 2015 amendments, defendants must be served and scheduling orders must be issued within 90 days after the complaint is filed. Not only does this speed up the case timetable, but it also has the potential to cut costs, if for no other reason than reducing the number of hours billed to you.
Rule 4(m): Time Limit for Service.
If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1).
Rule 16(b): Scheduling.
- Scheduling Order. Except in categories of actions exempted by local rule, the district judge — or a magistrate judge when authorized by local rule — must issue a scheduling order:
- after receiving the parties’ report under Rule 26(f); or
- after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference
- Time to Issue. The judge must issue the scheduling order as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.
- Contents of the Order.
- Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions.
- Permitted Contents.
The scheduling order may:
- modify the timing of disclosures under Rules 26(a)and 26(e)(1);
- modify the extent of discovery;
- provide for disclosure, discovery, or preservation of electronically stored information;
- include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502;
- direct that before moving for an order relating to discovery, the movant must request a conference with the court;
- set dates for pretrial conferences and for trial; and
- include other appropriate matters.
This is just a snippet of the rule, which applies specifically to e-discovery. Read the Rule in its Entirety Here
Rule 16 gives the court the opportunity to clearly outline the course of e-discovery for a case. If followed by the court, this rule affords the parties front-end transparency of when e-discovery deadlines are set and empowers the court to proactively get the parties together to identify and narrow e-discovery issues in the case.
How the Judge can Streamline Subsequent E-Discovery Activities
Essentially Rule 16 allows the judge to require conduct that helps the parties streamline e-discovery activities by:
- Requiring parties to appear at any time for a pre-trial conference
- Discouraging redundant, unnecessary, wasteful e-discovery activities
Because of the recent 2015 FRCP e-discovery amendments, Rules 4 and 16 will help accelerate e-discovery timelines even more, the time to issue the scheduling order is now reduced to 90 days (from 120 days) after any defendant has been served, or 60 days (from 90 days) after any defendant has appeared. These changes, along with the shortened time for service under Rule 4(m) (now 90 days), directly support the goals of Rule 1 for a just, speedy, and inexpensive resolution.
What Can Be Added to the Scheduling Order?
Rule 16(b)(3)(B) saw three new items added to the list of permitted contents for a scheduling order, which apply directly to e-discovery:
- disclosure, discovery, or preservation of electronically stored information
- agreements incorporated in a court order under Federal Rule Evidence 502 controlling the effects of disclosure of information covered by attorney-client privilege or work-product protection
- the movant may request a conference with the court for an order relating to discovery, which many judges find more efficient than a formal motion for resolving most discovery disputes; however, discretion to require these meetings is left up to the judge case by case.
What Happens if a Party Fails to Appear at a Pretrial Conference?
If a party or an attorney fails to appear at a scheduling order or any other pretrial conference, and is unprepared to participate, or fails to obey a scheduling order, the court can:
- impose any just orders authorized by Rule 37(b); or,
- instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay reasonable expenses, including attorney’s fees, incurred because of noncompliance.
Expert Insight by Hon. Xavier Rodriguez U.S. District Judge, Western District of Texas
All too often at Rule 16 conferences counsel for both sides announce that they do not anticipate any discovery issues or that they agreed upon what email needs to be produced. Then two months later motions to compel are filed. What happened?
In all likelihood, the attorneys failed to adequately prepare for the Rule 26(f) conference, and then failed to engage in a meaningful meet and confer session prior to the Rule 16 hearing.
At the Rule 16 hearing judges are trying to ascertain what amount of discovery is reasonable and proportional to the needs of the case. Judges are also attempting to identify early on where areas of potential dispute may lie.
"In cases where I believe the amount of requested discovery appears excessive, I often ask how the discovery you have requested is related to the elements of your cause of action or defense."
Many other judges recommend at the Rule 16 that parties engage in phasing or tiering discovery – encouraging the collection of relevant data from key players first before expanding to other locations.
Learn how to create a cost-effective preservation and collection process by using a phased approach. Download “Phased E-Discovery: How Tiering Collections Reduces Legal Costs”
At first blush this sounds non-controversial and commonsensical, but in actuality, depending on how data is stored it may turn out to be more expensive to engage in data collection in this piecemeal approach. Counsel need to be prepared to address preservation, collection, scope and form of production. This is a dramatic change in practice. Attorneys generally worried about discovery issues some months into the litigation. The 2015 rule amendments have changed all this.
- A Review of the Proposed Change to FRCP 4(m) by Patricia W. Moore at St. Thomas Univ. School of Law - a law professor provides a detailed breakdown of the potential impact of the 2015 changes to FRCP Rule 4(m).
- FRCP Amendments clear up 4(m) just a bit by Aaron Lukken at Viking Advocates - a review of the 2016 amendments to FRCP Rule 4(m) that addressed a possible ambiguity with the rule pertaining to foreign entities.
In cases where I believe the amount of requested discovery appears excessive, I often ask how the discovery you have requested is related to the elements of your cause of action or defense.