Civil Rules Roundtable: Insofar As Just and Practicable

Tuesday, December 1, 2015 - 16:37
Mark Euler

Mark Euler

The FRCP amendments state: “[T]he amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 2015, and shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”

For matters filed on or after December 1, 2015, there will understandably be a learning curve for both attorneys and judges to get accustomed to the impact of some of the amendments; however, at least everyone is on even footing as it relates to understanding that the amendments do, in fact, apply. What is perhaps a greater concern is the application of the new amendments to actions pending as of December 1, 2015 “insofar as just and practicable.” Without further guidance, such a standard actually creates potential additional layers of complexity to amendments that were otherwise aimed at creating simplicity and efficiency.    

For a starting point, it is not clear what the default position is relating to whether the amendments apply to pending actions. Do they apply unless it can be shown that doing so would be unjust and impracticable? Or do they apply only once it is shown it would be just and practicable? Is there even is a default position?  

Whether there is a default position, and what that default position is, makes a significant difference with regard to who has the burden of proof to show that the application is just and practicable. If the default position is that the amendments apply to pending matters, then it puts the onus on the party that believes the amendments should not apply to argue that their application would be unjust and impracticable. While typically once amendments to the rules take effect they apply to all pending matters going forward, which would support an argument that the default position is that amendments apply to pending matters unless it can be shown it would be unjust and impracticable, it seems better language to use if that were the intended default position would be “the amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 2015, and shall govern in all proceedings in civil cases thereafter commenced, and also to all proceedings then pending except where unjust and impracticable to do so.”  

Regardless of what the default position of the amendments may be, the amendments with the biggest potential impact on pending matters are the discovery-related amendments (e.g., Rules 26, 30, 31, 33, 34 and 37). In a lawyer’s role as advocate, he/she will no doubt zealously point to and argue for application of the amendments when they support their client’s position (or argue for nonapplication when they do not), which is to be expected. However, by not having any clear guidance as to when the amendments apply, it creates an entirely new and additional phase to a discovery dispute in a pending matter through arguments by one or both sides regarding whether application of one or more of the amendments would be just and practicable. Only after that initial hurdle is resolved will the parties be able to turn to arguments regarding interpretation of the amendments. 

For example, let’s say you are involved in a discovery dispute on behalf of your client, and you are alleging that the discovery being requested is not proportional to the needs of the case, whether related to costs or otherwise. If the matter is already pending before the court, you will absolutely want to supplement prior arguments to show that the new amendments to Rule 26(b)(1) support your position regarding a claim of proportionality. However, before the impact of the actual amendment can be addressed, the court will need to determine whether applying the amendments to the pending dispute is both just and practicable, which would elicit arguments from both sides on that subject.    

Again, while the long-term effect of the amendments should be to reduce the scope of discovery and promote more cost-effective and efficient litigation practices, the short-term impact on pending matters may be to actually introduce further complexity into the discovery process.  


Mark Euler is Legal Counsel at Epiq