On December 1, 2015, some important amendments went into effect to the Federal Rules of Civil Procedure. Much of the focus has been on a few changes to Rules 4, 26, and 37. In some circles, the shortening of time for service from 120 to 90 days under Rule 4 has drawn ire. As Keith Lee explains at Associate’s Mind, important changes to the proportionality of discovery allowed under Rule 26, and the re-structuring of safe harbors available for electronically stored information under Rule 37, and also been an important topic of discussion.
Buried within these revisions is a subtle change that allows the early service of requests for production under Rule 34. Under Rule 26(d)(1), discovery begins after the parties’ Rule 26(f) conference, although the scheduling of that conference can be subject to judicial order. Previously, the parties could not conduct any discovery until after that conference, but that has changed.
The new language of Rule 26(d) allows for a party to serve requests for production in advance of the Rule 26(f) conference:
(2) Early Rule 34 Requests.
(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:
(i) to that party by any other party, and
(ii) by that party to any plaintiff or to any other party that has been served.
(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.
Rule 34 also has been updated to correlate with this change to Rule 26:
(2) Responses and Objections.
(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
This modification will not be a sea change in and of itself, but does have its advantages. First, a party with discovery requests served on the opposing side in advance of the Rule 26(f) conference will have the momentum going into discovery. While these requests could have been drafted before the Rule 26(f) conference under the prior rules, being able to serve them in advance may provide a psychological advantage against the right party.
The main advantage of using this modification to Rule 34 harkens back to James Carville’s old advice of throwing your opponent an anvil when he’s drowning. While a party is preparing for a Rule 26(f) conference and potentially even working on Rule 12 briefing, there’s now a set of production requests–potentially very broad ones–lodged on the horizon.
Sure, the changes to Rules 26(d) and 34 should expedite litigation, which seems to be the overriding theme of all the 2015 amendments to the Federal Rules of Civil Procedure. But that does not mean the practical effects of the rule updates are limited to that purpose, either.
A full, redlined version of the 2015 amendments to the Federal Rules of Civil Procedure, if you have not seen them, are available here.