I Want Your Documents. NOW!

November 19, 2015

Note: The image in this Blog is an official promo shot for public use.  It can be found here:  http://24.wikia.com/wiki/File:Bauer_Season_5.jpg

Note: The image in this Blog is an official promo shot for public use. It can be found here: http://24.wikia.com/wiki/File:Bauer_Season_5.jpg

This is the seventh 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. 


Okay, so the civil rules Advisory Committee did not turn 24’s Jack Bauer loose on the document production process in federal court.  But the Advisory Committee did draft amendments accelerating the start of the document request process.

The report of the Duke Conference—the conference that gathered some of the input that led to the 2015 amendments—summarized the perceived deficits in the current Federal Rules of Civil Procedure as follows:  “What is needed can be described in two words—cooperation and proportionality—and one phrase—sustained, active, hands-on judicial case management.”  One amendment to the rules governing requests for documents introduces a process that addresses all three of these deficits.

Federal Civil Rules HandbookIn general, the FRCP set an early deadline for commencing discovery—you can’t serve discovery until the parties have conducted their discovery conference under Rule 26(f).  New language in Rules 26 and 34 creates an exception to this discovery starting gun.

Starting December 1, you can serve requests to inspect documents or things starting 21 days after the complaint and summons are served on a party.  Interestingly, the time to answer is not accelerated to match the time for service.  Rather, for purposes of calculating the response date, the request is deemed served as of the Rule 26(f) conference, so that the response would be due 30 days after the Rule 26(f) conference (not 30 days after service of the request).

The purpose of the new procedure is to foster more robust discussion of document production issues during the Rule 26(f) conference and the subsequent Rule 16 conference with the judge.  For example, if a responding party believes it would be too expensive or burdensome to search a certain document repository for requested documents (proportionality), the responding party can identify its concerns at the Rule 26(f) conference and try to work through them with the requesting party (cooperation), then raise them with the judge if necessary at the Rule 16 conference (active, hands-on judicial case management).  Voila.