Saturday, August 30, 2014

Proposed FRCP Amendments Aim to Shorten Deadlines

            Continuing my ongoing review of the proposed amendments to the Federal Rules of Civil Procedure currently pending before the Judicial Conference of the United States, I move on to one of the changes proposed to Rule 16: the shortening by 30 days of the time for the court to issue a scheduling order.  As noted in my last post, the time within which the plaintiff must serve process on the defendant has also been shortened by 30 days.  

            The cumulative effect is that the scheduling order will potentially issue 60 days earlier than it does now.  The hypothetical effect of the proposed changes in scheduling is illustrated in the table below. 

            The proposed change to Rule 16(b)(2) is:

(2) Time to Issue.  The judge must issue the scheduling order as soon as practicable, but in any event unless the judge finds good cause for delay, the judge must issue it within the earlier of  120 90 days after any defendant has been served with the complaint or 90 60 days after any defendant has appeared.

             The table below assumes that the complaint is filed on January 6, 2014.  I have calculated deadlines under the current rules and under the proposed rules.  (I may be off by a day or two, so forgive me.)  Please note that many of these dates are under the parties' control, and therefore would be different than the dates I have calculated by strictly following the rules.  For example, the plaintiff can serve the defendant before the last possible date.  The defendant may answer early, or obtain agreement from the plaintiff (or permission from the court) to answer late.  The parties may stipulate to a different time for the initial disclosures. 

          Comparison of Deadlines under Existing FRCP and Proposed FRCP

    (all dates are in 2014 and assume the complaint was filed January 6, 2014)


Existing rules

Proposed rules

Defendant must be served.   

May 6

April 7

Defendant responds to complaint.

May 27

April 28

Rule 34 requests can be "delivered" under proposed rules or "served" under existing rules.


August 4


April 28

26(f) conference must be held.

August 4

June 6

26(f) report and initial disclosures due.

August 11

June 20

Court holds scheduling conference.

Not required.  No exact date set by rules.

Not required.  No exact date set by rules.

Court must issue scheduling order.

August 25

June 27

Response to Rule 34 request due.

September 3

July 7


            As shown in the table above, some of the proposed changes to Rules 26 and 34 (which I have not yet blogged about) allow the parties to "deliver" (not serve) Rule 34 requests 21 days after service of process on the defendant.  The response to that Rule 34 request will not be due, however, until 30 days after the parties' Rule 26(f) conference.  The rationale for the change is that the parties may have a more productive 26(f) conference if they have actual document requests to discuss.

            Since the time for the parties' Rule 26(f) conference is tied to Rule 16(b), the Rule 26(f) conference is also moved up by 30 days -- maybe.  A new provision allowing wiggle room for "good cause for delay" of the Rule 26(f) conference seems geared to accommodate institutional defendants: the Advisory Committee's only example of a reason for delay is that "[l]itigation involving complex issues, multiple parties, and large organizations, public or private, may be more likely to need extra time to establish meaningful collaboration between counsel and the people who can supply the information needed to participate in a useful way." 

            The time for initial disclosures is tied to Rule 26(f) (which in turn is tied to Rule 16(b)), so theoretically the shortening of the time to issue a scheduling order also shortens the time to exchange initial disclosures.  The same safety valve of a delay in the scheduling order for good cause would also necessarily affect the initial disclosures, or the parties could simply agree on a later date for the disclosures.  

            Many commenters on the proposed amendments favored making a scheduling conference mandatory.  The proposal, however, continues to leave to the judge's discretion whether to hold a scheduling conference at all, and if so, when.

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