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February 19, 2016Download PDF

The 2015 Amendments to the Federal Rules of Civil Procedure in Practice: Third Circuit Courts' Application of the 2015 Amendments

Proposed 2015 Amendments to the Federal Rules of Civil Procedure, available here, became effective December 1, 2015. For litigators, the 2015 Amendments have practical implications on early case management and discovery, especially discovery of electronically stored information.  Below is a summary of some of the Amendments, which also provides examples of how those practical implications have played out so far in District Courts in the Third Circuit.

Rule 1:  Scope and Purpose

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. 

See Redline of 2015 FRCP Amendments at 1.  See also April 29, 2015 Amendments at 4. 

The Amendment makes clear that parties are bound to use the Rules to just, speedy, and inexpensive ends.  The Committee Notes also make clear the Amendment’s intent: to “discourage [the parties from] over-use, misuse, and abuse of procedural tools that increase cost and result in delay”.  (The Committee Notes on Rules – 2015 Amendment are available by following the hyperlink on this page.) 

Courts in the Third Circuit have cited the 2015 Amendment to:

  • bar testimony at trial (Gucker v. United States Steel Corp., No. 13-583, 2016 U.S. Dist. LEXIS 11519 (W.D. Pa. Jan. 31, 2016));
  • find a defendant’s facts to be “uncontroverted” by any evidence in the record (Defillipis v. Dell Fin. Servs., No. 3:14-CV-00115, 2016 U.S. Dist. LEXIS 11271 (M.D. Pa. Jan. 29, 2016));
  • deny a defendant’s motion to dismiss for insufficient service (Camara v. Stevens Transp., No. 14-2042 (KM) (MAH), 2016 U.S. Dist. LEXIS 2738 (D.N.J. Jan. 8, 2016));
  • deny a plaintiff’s motion to certify a discovery order for appeal (Summy-Long v. Pa. State Univ., No. 1:06-cv-1117, 2016 U.S. Dist. LEXIS 1524 (M.D. Pa. Jan. 7, 2016));
  • deny a plaintiff’s motion to voluntarily dismiss the complaint in an attempt to refile the case in state court (Cottingham v. Tutor Perini Bldg. Corp., No. 14-2793, 2016 U.S. Dist. LEXIS 629 (E.D. Pa. Jan. 5, 2016));
  • deny a plaintiff’s motion to amend the complaint months after fact discovery closed and four days before summary judgment motions were scheduled to be filed (United Nat'l Ins. Co. v. Indian Harbor Ins. Co., No. 14-6425, 2015 U.S. Dist. LEXIS 164759 (E.D. Pa. Dec. 9, 2015)).

Rule 26.          Duty to Disclose; General Provisions Governing Discovery

(b)       Discovery Scope and Limits.

(1)        Scope in General.  Unless otherwise limited by court order, the scope of discovery is as follows: 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.

See Redline of 2015 FRCP Amendments at 10-11.  See also April 29, 2015 Amendments at 12-13. 

The Amendment to Rule 26(b)(1) replaces the former standard that the scope of discovery should be broad enough to capture information “reasonably calculated to lead to the discovery of admissible evidence” with one that permits discovery “proportional to the needs of the case.”  What is proportional is based on factors previously found under FRCP 26(b)(2)(C), plus one additional factor: “the parties’ relative access to relevant information.”  In practice, parties will need to look at those factors before requesting, responding, and objecting to discovery.  However, the Committee Notes warn parties that they cannot “refuse discovery simply by making a boilerplate objection that [the request] is not proportional.” 

Courts in the Third Circuit have applied the new proportionality factors to:

  • compel a plaintiff to produce all post-trial motions filed in the plaintiff’s underlying criminal case to bar Plaintiff’s claims under Heck v. Humphrey (Dixon v. Williams, No. 4:13-CV-02762, 2016 U.S. Dist. LEXIS 18829 (M.D. Pa. Feb. 17, 2016));
  • permit a pro se plaintiff to take the depositions of defendant police officers and to allow for the production of defendants’ electronically stored information (Kramer v. City of New Kensington, Civil Action No. 13-606, 2016 U.S. Dist. LEXIS 12874 (W.D. Pa. Feb. 3, 2016));
  • allow a plaintiff one deposition in excess of the ten permitted by the original case management order (Wertz v. GEA Heat Exchangers Inc., No. 1:14-CV-1991, 2015 U.S. Dist. LEXIS 167947 (M.D. Pa. Dec. 16, 2015));
  • grant class plaintiffs in an FSLA case access to defendant’s training, procedure and orientation documents and compel defendant to provide a designee concerning 15 topics (Bell v. Reading Hosp., No. 13-5927, 2016 U.S. Dist. LEXIS 4643 (E.D. Pa. Jan. 14, 2016)).

Rule 37.   Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(e)        Failure to Preserve Electronically Stored Information.  If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1)        upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2)        only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A)    presume that the lost information was unfavorable to the party;

(B)    instruct the jury that it may or must presume the information was unfavorable to the party; or

(C)    dismiss the action or enter a default judgment.

See Redline of 2015 FRCP Amendments at 36-37.  See also April 29, 2015 Amendments at 25-26. 

The Amendment creates a uniform standard for curing prejudice and sanctioning parties who (1) should have “preserved” ESI “in anticipation or conduct of litigation,” (2) lost ESI because they did not “take reasonable steps” to so, where (3) the information contained therein is not recoverable or replaceable through other discovery.  If a movant can make the predicate showing, the court can either (a) cure any prejudice to the movant for the lost information or (b) impose severe sanctions found in the rule if the failure to preserve was intentionally meant to deprive the other party.  The Committee Notes define the “intent requirement as akin to bad faith.” 

Courts in the Third Circuit have cited the 2015 Amendments to:

  • analogize the defendants’ repeated and willful failure to comply with the initial disclosure requirements of the Local Patent Rules to the intent required under Rule 37(e) before sanctioning defendants, striking defendants’ answer, entering default against them, and scheduling a damages trial (Drone Techs., Inc. v. Parrot S.A., 303 F.R.D. 254 (W.D. Pa. 2014)).
  • grant defendants a narrowly tailored non-monetary adverse inference sanction amounting to a jury instruction that the lost information was unfavorable to the plaintiff’s case where the plaintiff deleted crucial information concerning a rough draft of a business plan after discovery commenced in a case alleging breach of a non-disclosure agreement (DVComm, LLC v. Hotwire Communs., LLC, No. 14-5543, 2016 U.S. Dist. LEXIS 13661 (E.D. Pa. Feb. 3, 2016)).