The “Duke Rules” Package—so labeled because they were the product of a 2010 conference of judges, practitioners, corporate counsel and professors held at Duke Law School—consisted of amendments to Rules 1, 4, 16, 26, 30, 31, 33, 34 and 37 and addressed case management, discovery and cooperation. Here are some highlights of the changes made by these amendments:
Rule 4(m): reduction of the time within which service of process must occur from 120 to 90 days from the time the complaint is filed (a change that also affects the time for relation back of party-changing amendments under Rule 15(c));
Rule 16(b)(2): reduction of the time to issue a scheduling order from 120 to 90 days after any defendant has been served and from 90 to 60 days after any defendant has appeared;
Rule 16(b)(3): additional language indicating that scheduling orders may address the preservation of electronically stored information and any agreements regarding inadvertent disclosures reached pursuant to Federal Rule of Evidence 502;
Rule 26(b)(1): revision of the scope of discovery to eliminate subject matter discovery and to add a requirement that discovery be proportional to the needs of the case;
Rule 26(d): a new provision for early Rule 34 requests that may be served as soon as 21 days after service of process.
Rule 34: a new requirement that objections to discovery requests be stated with specificity and that any objections must indicate whether responsive materials are being withheld on the basis of that objection.
Also taking effect in December was an amendment to Rule 37(e) that seeks to create a uniform approach to addressing spoliation of electronically stored information. Under the amended rule, a court may only take action dealing with spoliation of such information if reasonable steps to preserve the information were not taken. If that is the case, the court is only permitted to take certain remedial action if the impact of the information loss cannot be mitigated through additional discovery. To take further remedial action, the court must find that the loss of the information actually prejudiced the innocent party, and if so, the court may only take measures no greater than necessary to cure the prejudice. Finally, it is only upon a finding that the spoliating party acted “with the intent to deprive another party of the information’s use in the litigation” that a court may impose sanctions, which are limited to permissive or mandatory adverse inference instructions, the dismissal of the action, or entry of default judgment.
The final amendment taking effect in December is the abrogation of Rule 84, which previously provided for an appendix of official forms that illustrated the application of the rules and were deemed sufficient thereunder. The Advisory Committee on Civil Rules, which drafted these amendments, indicated that the forms were no longer needed and stood in some tension with recent Supreme Court cases interpreting the pleading standard of Rule 8(a)(2).
These changes were highlighted by Chief Justice John Roberts in his 2015 year-end annual report, where he lauded them by writing, “The 2015 civil rules amendments are a major stride toward a better federal court system.” There were many practitioners and academics who registered their opposition to these amendments on various grounds. It is likely that both supporters and opponents of these amendments will be debating their merits for years to come.
Spencer is the Earle K. Shawe Professor of Law.