Federal Rules Update

1. Federal Rules Update
Effective Dec. 1, 2015

2. Forms Abrogated / Pleading Standards?
• Rule 84 and Forms, including Form 18 (patent
infringement complaint), eliminated.
• Pleading direct infringement must satisfy
Twombly?
– Indirect infringement already required this. See
In re Bill of Lading (FC 2012).
– BUT Rules Committee Comment: “The
abrogation of Rule 84 does not alter existing
pleading standards or otherwise change the
requirements of Civil Rule 8.”
• (Pending “reform” legislation would heighten
pleading standards in other ways.)

3. Forms Abrogated
• Forms 5 and 6 for Waiver of Service move to
substantive Rule 4.

4. Time Limit for Service
• Rule 4(m) amended regarding dismissal
• Was: 120 days
• Now: 90 days

5. Rule 26 Scope, Proportionality Rephrased
• 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.

6. Rule 26 Scope, Proportionality Rephrased
• “reasonably calculated to lead” language
removed

7. Rule 26 Timing
• Can deliver Rule 34 Requests 21 days after
summons and complaint.
• BUT: Considered served (for response time)
at Rule 26(f) conference
• (Corresponding amendment to Rule 34)

8. Rule 34
• Objections
– Must state whether any responsive materials are
being withheld.
• Time for Production
– “no later than the time for inspection specified in
the request
or
– another reasonable time specified in the
response.”

9. Rule 37 and ESI
• Rule 37(e) Amended
• Was: sanctions for failure to preserve ESI (lost
in routine operations) only for exceptional
circumstances
• Now:
– Court can order “measures… necessary to cure
prejudice” if:
 Should have been preserved
 Lost because failure to take reasonable steps; and
 Cannot be restored/replaced
– Intent to deprive = presumption of unfavorable
info; jury instruction; or dismissal/default.