July 2015 Bar Bulletin
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July 2015 Bar Bulletin

Changes Coming to the Federal Rules of Civil Procedure

By Todd Nunn

 

On December 1, unless Congress takes contrary action, certain amendments to the Federal Rules of Civil Procedure will go into effect. There are a number of amendments that will be made, but this article will focus on the four most significant changes.

Cooperation

Rule 1 sets forth the "Scope and Purpose" of the Federal Rules of Civil Procedure. This rule will be amended as follows:

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

The Committee Note states, "Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way." The Note further states that "[m]ost lawyers and parties cooperate to achieve these ends," and that "[e]ffective advocacy is consistent with - and indeed depends upon - cooperative and proportional use of procedure."

In response to concerns expressed during the comment period that "this change may invite ill-founded attempts to seek sanctions for violating a duty to cooperate," the Note makes it clear that "[t]his amendment does not create a new or independent source of sanctions."

Proportionality

Proportionality of discovery just makes sense. There should be less discovery for a small case than there is for a large case. And the concept of proportionality is being put front and center of the discovery rules.


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