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Keep It Moving: New Procedural Rules Seek Efficiency

By Dillon J. Ambrose
On November 4, 2015, the Civil Committee of the Eastern District of Wisconsin Bar Association hosted a CLE entitled “Changes to the Federal Rules of Civil Procedure: What You Need to Know.” Cynthia Rigsby, a partner at Foley & Lardner, moderated a lively exchange between a panel consisting of Magistrate Judge Nancy Joseph, Magistrate Judge David Jones, and Mr. Matthew Stippich, Vice President/General Counsel of Digital Intelligence, Inc. The panelists shared their thoughts on the new rule changes and how those changes will be implemented practically.

Both Judge Joseph and Judge Jones summed up the theme of these changes as “Keep it Moving.” Whether it is shortening the time in which to serve a defendant, reducing the timeframe for a judge to issue a scheduling order, allowing earlier Rule 34 requests, or simply offering the ability to conference with the judge prior to a discovery motion, the amendments generally serve to streamline litigation.

Judge Jones noted that new federal judges are being trained early, during the Federal Judicial Center’s orientation seminar, that pre-discovery motion conferences with the court are effective and should be used to cut down on unnecessary discovery disputes. He endorsed the practice and plans to make it a part of his scheduling orders. And Judge Jones is not alone. Chief Justice John Roberts recently endorsed this amendment, arguing “[s]uch conferences can often obviate the need for a formal motion—a well-timed scowl from a trial judge can go a long way in moving things along crisply.”

Another amendment that drew a great deal of attention and discussion was the change to Rule 26, which now states:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Judge Joseph was quick to note that this is not an entirely different framework, but a clarification to restore focus on proportionality. So, while the standard has not really changed, it should at least be clearer now.

Matt Stippich provided his thoughts as an individual who works exclusively in the discovery field, noting the restored focus on proportionality should encourage early attention to discovery. He argued that attorneys empowered with an early and comprehensive understanding of the sources of information in a case will permit them to craft a more precise and cost-efficient discovery plan. The restored focus on proportionality will encourage testing and sampling to support proportionality objections, which will alleviate much of the cost tied up in e-discovery cases, which is usually expensive due to insufficient knowledge of the data and poor planning.

Rule 34 also contains an amendment worthy of note. It states that any objections must be made with specificity, and a respondent must now state whether any materials are being withheld by virtue of that objection.

While all the amendments were discussed at the CLE, not all can be discussed within this article, so please review the amendments yourself. In the end, the hope is that these amendments will speed up your cases in federal court and keep the case moving.
This article was published in the April 2016 edition of the Eastern District of Wisconsin Bar Association’s (EDWBA) Newsletter.