The Long-Term Effects of the New U.S. Federal Rules of Civil Procedure (FRCP) Litigation Rules

On December 1, 2015, amendments to the Federal Rules of Civil Procedure were implemented. These new changes impact several areas of patent litigation, including pleading standards, discovery, and electronically stored information. Managing Intellectual Property contacted Finnegan attorneys Jason E. Stach and Jeffrey C. Totten for their insight on the new rules.

One change is that plaintiffs now have a shorter timeline (90 days) for serving complaints and the time allowed for issuance of a scheduling order has been reduced to 30 days. Stach believes that this change will affect plaintiffs' strategies. He said, "It used to be that some folks would try to file a complaint and then negotiate a settlement before they ever served the complaint. That window is now shorter and maybe makes it less likely that the parties are able to settle before the complaint gets served and the case really starts to get rolling. There are things like that that might impact the strategy on a case-by-case basis. But if you are in a case where you know you are going to move forward with it and serve the complaint on the day you file it, it doesn’t affect your strategy at all." The new rules also affect discovery, but it is still uncertain how that will play out. Totten said, "What is a little less certain is whether the changes in the rules will actually dramatically shift the scope of discovery or the way the parties proceed. As courts weigh discovery in future, it may be the language shifts and the scope of discovery does not change, particularly for parties involved in complex cases." Stach also had thoughts on the impact on discovery. He said, "It is not clear to me yet that when you come in with a discovery request that you are going to have to show affirmatively that the burden is on the requester to show the discovery request is proportional to the case, the importance of the issues, and those sort of things. Or whether you just serve your discovery and the burden is on the responding party it is not actually proportional. Whose burden is it really to sort this out? Courts can vary on that because I don’t think the rule necessarily is clear on who bears that burden. You may have on court apply it one way and another court apply it a different way. Totten added, "I think what the changes in the rules will do is to encourage courts and parties to consider how important each case is and how important every discovery request is in view of that case and to recognize that not every case demands the scope of discovery that is sometimes offered under the previously formatted rules."