Proposed Amendment to FRCP 16(b): Beneficial for Plaintiff Trial Attorneys?
Though public comments to the proposed amendments to the Federal Rules of Civil Procedure are now closed, plaintiff trial attorneys are still examining how the changes will affect current discovery procedures. Having thoroughly reviewed and discussed the controversy of Rule 37(e), we now turn our attention to Rule 16(b).
Changes to Rule 16(b) are explained by the Committee as providing judges with a little more discretion in scheduling, encouraging direct communication and shortening the perceived delay that occurs at the beginning of litigation.
16(b)(1)(B) removes the suggestion that telephone and mail are as acceptable, as the Committee believes direct communication produces better results.
16(b)(2) reduces the time allowed for judges to issue a scheduling order by 30 days. Again, the Committee is encouraging a faster litigation schedule.
16(b)(3)(B) increases the discretion of a judicial scheduling order, adding preservation of ESI, explicitly allowing agreements under Fed. R. Ev. 502 and requiring all counsel to request a conference with the court before moving for an order related to discovery. This last addition is intended to give judges an efficient method to resolve discovery disputes, and plaintiff’s counsel might find this new addition makes for quicker dispute resolutions. However, the requirement is merely to request a conference. Judges still have it within their discretion to deny the conference request.
Did You Know: The public comments to the proposed amendments to the FRCP reached over 2,000 submissions!