November 5, 2014
The next two proposed amendments we are going to look at in our series on proposed changes to the Federal Rules of Civil Procedure are to Rules 4(m) and 16. The changes contemplated by these amendments are designed to increase early and active judicial case management.
Rule 4(m) currently allows a period of 120 days for serving the defendant with the summons and complaint. The proposed amendment would reduce that period to 90 days. This change is intended to reduce delays at the beginning of litigation.
The Committee originally proposed a 60 day period; however, after considering public comments on the issue, the Committee recommended the 90 day limit.
Three types of changes are proposed for Rule 16.
First, the Committee recommended that Rule 16(b)(1)(B), which currently reads “after consulting with the parties, attorneys and any unrepresented parties at a scheduling conference by telephone, mail, or other means” be changed to delete the words “telephone, mail, or other means.” The committee note clarifies that the conference may be held by any “direct simultaneous communication” and Rule 16(b)(1)(A) still allows a scheduling order to be based on the parties Rule 26(f) report without holding a conference; however the change to the text of the rule is intended to encourage judges to participate in direct exchanges with the parties early on in the litigation process.
Second, the time frame for holding the scheduling conference would be shortened. The current rule allows for the conference to be held at the earlier of 120 days after any defendant is served or 90 days after any defendant has appeared. The proposed amendment would reduce the number of days to 90 days after any defendant is served or 60 days after any defendant has appeared. Judges would be allowed to set a later date with a finding of good cause. The purpose of this change is to encourage judges to engage in early case management.
Third, the proposed amendment adds three new topics to the list of permitted contents in a scheduling order. The first two are the preservation of Electronically Stored Information (ESI) and agreements reached under Federal Rule of Evidence 502. ESI is developing into a prevalent issue in civil litigation and FRE 502 deals with the reduction of expense in producing ESI and other documents. By adding these topics to the list of permitted contents, the Committee is encouraging parties to consider the application of these issues early in the litigation process.
The last topic added to the list of permitted contents in the scheduling order is whether the parties will be required to request a conference with the court before filing discovery requests. Many federal judges currently require such a pre-motion conference because it can be useful in resolving discovery disputes.