“The Chief Justice’s 2015 report on the judiciary was a clarion call for culture change in the ‘contest’ that we call litigation. The early returns on the 2015 amendments are hopeful,” writes Shook, Hardy & Bacon Partner John Barkett in an April 14 Bloomberg BNA—Digital Discovery & Evidence Report article titled, “The First 100 Days (or So) of Case Law Under the 2015 Amendments to the Federal Rules.” Among Barkett’s many accomplishments and appointments, he has been a member of the Advisory Committee for Civil Rules of the Federal Judicial Conference since 2012.
U.S. Supreme Court Chief Justice John Roberts published a report in January 2016 detailing major changes to the Federal Rules of Civil Procedure, which became effective on December 1, 2015. Barkett’s article examines some amendments to the Federal Rules and progress in reaching Justice Roberts’ challenge posed to lawyers and judges to “deliver speedy, fair and efficient justice” 100 days into operating under the new standards, based on decisions rendered since Dec. 1, 2015. Specifically, Barkett evaluates the changes to Rules 1, 26(b)(1) and 37(e).
Summarizing the changes in these rules, Barkett explains that “Rule 1 now directs that the Federal Rules ‘should be construed, administered, and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding.’” Regarding 26(b)(1), Barkett covers two deletions (on limiting discovery and “reasonably calculated to lead to the discovery of admissible evidence) and one addition, covering proportionality. For 37(e), Barkett discusses the revised sanctions for the loss of electronically stored information.
Through analyzing the decisions, Barkett sees that the 2015 amendments are inspiring culture change and more just and cost-effective litigation. However, Barkett expresses that the bench and bar “must be both vigilant and vigorous if we are to take advantage of the ‘opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result.’”