Why Businesses May Like the "Duke Rules Package" Part 4 of 4: The Outcome

Posted on by John M. Erbach in Litigation

Earlier this year, I introduced a four-part series about the "Duke Rules Package" which includes drastic changes to the Federal Rules of Civil Procedure. On April 29, 2015, Chief Justice John Roberts officially informed Congress that the high Court had adopted most of the rules proposed by the Duke Rules Package, taking effect December 1, 2015. The so-called "Duke Rules Package" gets its name from the 2010 Federal Rules Advisory Committee meeting held at Duke University. The amendments, which are designed to streamline federal litigation while reducing costs, appear to be business-friendly and may influence how you manage litigation costs.

In this final installment, I summarize the rules ultimately adopted by the Supreme Court. The Justices adopted each of the proposed amendments discussed in Parts 1 through 3 of this series, which include:

  • Rule 4(m): reduces the amount of time within which plaintiffs must serve all defendants with a copy of the summons and complaint.
  • Rule 16: reduces the amount of time within which courts are directed to hold an initial pretrial conference.
  • Rule 26: amends the scope of discovery such that it is "proportional to the needs of the case;" also allows any party to serve document requests as soon as 21 days after service of the summons and complaint, possibly moving document discovery up in the life of a case.
  • Rule 37(e): limits penalties for negligently destroying electronically stored data to "measures no greater than necessary to cure [any] prejudice" unless the destruction was intentional.

In total, the Supreme Court amended Rules 1, 4, 16, 26, 30, 31, 33, 34, 37 and 55, and eliminated Rule 84 altogether. The elimination of Rule 84 is of particular note, because it eliminates the Appendix of Forms. At times, certain forms were relied upon to measure the sufficiency of allegations. For example, Form 18, which applies to patent infringement, was a point of disagreement among the courts. Some courts found that a complaint tracking Form 18 was sufficient, but others did not. Now, the Rules will govern without reference to the forms.

As explained in Parts 1 through 3, some of these rules might be helpful to streamline litigation and, ultimately, reduce the cost of litigation -- only time will tell whether that actually happens. But the effects of these rules could come sooner than you think. These amendments will apply in all cases filed after December 1, 2015, and in all cases then-pending "insofar as just and practicable." If your business is currently embroiled in litigation that continues past December 1, you might be able to bring the new rules into play in your case.

About the Author

John M. Erbach represents a wide variety of business entities and individuals in complex business and commercial litigation, including employment disputes, defense of consumer protection claims, and intellectual property litigation.

Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.