Federal civil lawsuits get speedier (and other scheduling order revisions)

November 12, 2015

This image is the property of PRESENTERMEDIA and is used here by license granted to the author

This image is the property of PRESENTERMEDIA and is used here by license granted to the author

This is the sixth in a series of articles where the authors of the Federal Civil Rules Handbook – Steve Baicker-McKee and Bill Janssen – discuss some of the more significant amendments to the Federal Rules of Civil Procedure that take effect in less than two months’ time.  The newest edition of the Federal Civil Rules Handbook (available November 2015) offers detailed commentary on each of the coming amendments, and other important recent changes in federal civil practice. 


 

One of the recurring objectives of the 2015 Amendments to the Civil Rules is to cull delay in federal litigation.  An earlier blog entry explained how this was pursued by reducing the time to serve process.  Further delay-reduction motivated a notable December 2015 amendment to the Scheduling Order process.

The time for issuing a case’s Scheduling Order (where, importantly, critical deadlines for joinder, pleadings amendments, close-of-discovery, and motion filing will be set) has been shortened.  The new presumptive deadline moves to the earlier of (a) 90-days after any defendant is served with the complaint, or (b) 60-days after any defendant has appeared.  Both deadlines shave 30-days off the former periods.  Consequently, the “soft” time at the beginning of each lawsuit is now meaningfully shortened.  Note, however, that in complicated litigation where such a shortened period may prove insufficient, judges are now authorized to extend the presumptive deadline for good cause.

Two other amendments to the Pretrial Conferences/Scheduling/ Management rule are particularly noteworthy.

Federal Civil Rules HandbookFirst, the option of convening a scheduling conference by “telephone, mail, or other means” has been stricken.  Allowing such static conferencing at the outset of litigation troubled the Advisory Committee.  Instead, the amended Rule envisions that scheduling conferences will only occur by “direct simultaneous communication” (e.g., in-person, telephone, teleconference, or the like), so as to ensure such conferences are “more effective.”

Second, the permitted (or, perhaps more aptly, the “encouraged”) content of Scheduling Orders has been expanded.  Now, judges are expressly authorized to include in the Scheduling Orders they issue:

  1. ESI Preservation: Provisions addressing the preservation of electronically stored information;
  2. Inadvertent Disclosure Agreements: Formalizing into a court order any agreements reached by the parties on the effects of a disclosure of information otherwise shielded by attorney-client privilege or work product protection; and
  3. Pre-Filing Conferences for Discovery Disputes: A directive that discovery motions may not be filed without first requesting a conference with the court. (Many federal districts already have a similar practice as a Local Rule or Standing Chambers Order, and this new National provision tends to encourage more fulsome use of this practice.  By insisting on a pre-filing conference with the Court, the hope is that the number, frequency, and cost of discovery motions may be better contained.)

This is not a mandatory list, and judges are not compelled to include these items in their Scheduling Orders (at least absent a Local Rule or Standing Chambers Order directing otherwise).  But, like much of the other amendments taking effect on December 1, 2015, these enhancements could help contain the cost and delay of civil litigation in the federal courts.