The
KENTUCKY JUSTICE ASSOCIATION
Ex Parte After
Caldwell v. Chauvin
Impact of Changes to Federal
Rules of Civil Procedures
Effects of Montanile
on ERISA Liens
Distracted Driving
and Punitive Damages
Assigning Responsibility
to Corporate Modules
Issuing Out-of-state
Subpoenas
March/April 2016 • Volume 44, Number 2
By Leslie M. Cronen
Impact of Changes in the Federal Rules
of Civil Procedure on Practice in Kentucky
A
s of December 1, 2015, significant changes to
the Federal Rules of Civil Procedure (FRCP)
took effect. The Rules affected by these amendments are Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55
and 84.1 These changes are substantial, though many of
the original proposals were abandoned during the review
and comment period.2 While there have not been any corresponding amendments to the Kentucky Rules of Civil
Procedure, the FRCP amendments may impact practice in
state courts because Kentucky courts often look to federal
law to interpret its own rules.3 Though the FRCP amendments are still new, making it difficult to surmise their influence in daily practice in state court, it is advisable for us to
familiarize ourselves with the amendments and the potential
effect of those changes on how we practice in all Kentucky
courts. This article highlights noteworthy amendments and
discusses potential implications in state court practice.
The overarching goal of any amendment to the FRCP is
“to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination
of unjustifiable expense and delay.”4 According to the Committee’s Note, Rule 1 was amended to emphasize that the
parties share in the responsibility for the administration of
the Civil Rules to achieve the stated goals. While likely to not
affect practitioners much, this change certainly discourages
the misuse of the Civil Rules and is well-advised in both
federal and state courts.
An important change to FRCP 4 shortens the time for
service of a summons and complaint by 30 days—the intended effect being to reduce delay at the start of litigation.
Even though Kentucky does not have a similar deadline, but
rather requires that the summons be issued timely and in
good faith,5 practitioners should be aware of this change and
make every effort to effectuate service of summons shortly
after the summons is issued in the event Circuit Courts use
the new Federal Rule as a way to measure timeliness and
“good faith” in actions where defendants raise failure of
service of process as a defense.
14 The Advocate
Perhaps the change with the most potential to affect state
court practice is that found in FRCP 26 regarding the scope
of permissible discovery. It is arguably the most extensive
and significant change to the FRCP.6 While FRCP 26 now
focuses on the proportionality of the requested discovery in
order to determine whether it is permissible, Kentucky’s Rule
still allows a very broad scope: “Parties may obtain discovery
regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending matter…”7 This does
not mean, however, that litigants in Kentucky state courts
will not face proportionality challenges.
I
n fact, the proportionality language now moved to
the forefront of FRCP 26 is not new to the Rule,
it has simply been given added prominence and its
factors have been rearranged to highlight “the importance
of the issues and avoids any implication that the amount in
controversy is the most important concern.”8 The drafters
also were clearly concerned with leveling the playing field
of litigants and added a consideration of “the parties’ relative access to relevant information” to the proportionality
analysis.9 These are admirable goals and practitioners in
Kentucky would be well-served in many cases if the federal
analysis spilled over into state court actions. However, guard
against abuse of the proportionality argument.
With the uncertainty of how courts will interpret proportionality, the new rule may create an incentive for some
litigants to hide key documents or information in the middle
of a massive (and expensive) document production, all while
arguing to the court that such a production is burdensome
and not proportional to the needs of the case. Helpful for
an attorney facing these challenges is the fact that the drafters were clear that in no way has the burden shifted to the
party seeking discovery to prove proportionality. Instead,
it remains the burden of the party opposing the discovery
to prove why such discovery should not be had, whether
because it is unduly burdensome or disproportionate to the
needs of the case, or for some other reason allowed under
the Rules. It is vital that the court is
reminded that it must look at the substance of what is sought, not merely a
page count, in order to determine if
the discovery is important to the parties’ ability to resolve the issues in the
case. And if a party objects to providing
discovery based on the argument that
the opponent has sufficient resources to
obtain the requested information on its
own, it will be important to ensure that
only the party’s own resources are taken
into consideration, not the resources of
counsel. Based on the language of the
new FRCP 26(b)(i), any attempt to
combine the two would be improper.
T
he increased costs of litigation are one of the reasons
behind the changes, therefore litigants facing new proportionality
objections (most of which will likely
require a lengthy evidentiary hearing)
must be keen to point out to the courts
that frivolous objections can actually
cause higher litigation costs to all parties, increased burdens on the court
and slow-moving dockets. Courts will
hopefully see through any boilerplate
proportionality objections and instead
engage in a substantive review of the
issues in the case and how the discovery
requested advances the litigation.
In addition to moving the proportionality analysis to the forefront when
determining the permissible scope of
discovery, the new Rule also specifically
includes a provision allowing for the
allocation of expenses in a protective
order. Importantly, the Committee
Notes indicate that this amendment is
not intended to make cost shifting the
norm and reinforces the notion that “a
responding party ordinarily bears the
costs of responding.”10
Changes to Rule 34 deal with
objections to discovery requests. Now,
all objections must be stated with particularity and must state whether docu-
ments are being withheld because of an
objection. Further, the amendments to
FRCP 34 allow for the production of
copies of documents or electronically
stored information instead of permitting an inspection, but require that if
the responding party chooses to produce copies, the production must be
completed no later than the time set
for inspection. The Committee Notes
explain that these amendments are intended to reduce confusion that arises
when a producing party objects to a
request but still produces documents;
and clarifies that while a detailed log
of documents being withheld does not
need to be produced, enough information should be provided to allow a
substantive and informed discussion
about the objection. Arguably, similar
requirements in state court matters
could assist the parties in working
through discovery disputes without
court intervention.
The significant changes to FRCP
37 deal with the failure to preserve
electronically stored information, and
were prompted by the Circuits’ differing standards for imposing sanctions
based on a party’s failure to adequately
preserve this information. The new
Rule only applies when electronically
stored information is “lost” and cannot be produced from some other
source, and only when the party did
not take reasonable steps to preserve.
In determining whether curative action
or sanctions ought to be taken, a court
will need to decide when the duty to
preserve arose, because the duty to
preserve generally only arises once
litigation is reasonably foreseeable.
In Kentucky, although there is no
correlating Rule, it is generally recog-
March/April 2016
15
nized that the duty to preserve attaches
when a party is aware that evidence is
relevant at the time of destruction, and
sanctions are allowed under CR 37.11
Also, Kentucky courts will give a “missing evidence instruction.”12 “[W]hen it
may be reasonably [22] believed that
material evidence within the exclusive
possession and control of a party, or its
agents or employees, was lost without
explanation or is otherwise unaccountably missing, the trier of fact may find
that the evidence was intentionally and
in bad faith destroyed or concealed
by the party possessing it and that the
evidence, if available, would be adverse
to that party or favorable to his opponent.”13 However, the missing evidence
instruction should not be given when
the loss of evidence was the result of
mere negligence or where there is an
adequate explanation for the loss.14
There were additional changes to
other Rules, which, though not detailed
above, are nonetheless worthy of independent review. The changes not outlined here are not likely to have much,
if any, affect on practice in state courts
here in Kentucky because we have no
corresponding Rule.15 However, for
practitioners who litigate in both state
and federal courts, it is important to be
familiar with those changes, as well as
the ones outlined here, in order to not
miss important updates.
— Leslie M. Cronen is a partner in the
Louisville office of Bubalo Goode Sales &
Cronen PLC. Her practice focuses on representing individuals injured by defective
drugs and medical devices. She is actively
involved in all stages of litigation in both
state and federal courts across the country.
Leslie received her B.A. and her J.D.,
cum laude, from the University of Louisville. She may be reached at Lcronen@
BubaloLaw.com.
_______________
1 For a link to the redlined version depicting
the December 1, 2015 Amendments to the
FRCP, along with the Committee’s Notes,
see http://www.uscourts.gov/rules-policies/
current-rules-practice-procedure/federalrules-civil-procedure.
2 Initial proposals included reducing the
number of allowed interrogatories, requests
for admissions, and depositions, with a corresponding reduction in the time allowed
for each deposition. See Memo. From Hon.
Jeffrey S. Sutton, Chair, Comm. On Rules
of Practice and Procedure to the Bench,
Bar, and Public, Request for Comments on
Proposed Rules and Forms Amendments
(August 15, 2013).
3 O’Connell v. Cowan, 332 S.W.3d 34, 40-42
gO
gREEn.
gO
Ky. 2010); Sexton v. Bates, 41 S.W.3d 452,
456 (Ky. Ct. App. 2001) (internal citations
omitted).
4 http://www.uscourts.gov/rules-policies/
pending-rules-amendments, accessed January 22, 2016.
5 Ramirez v. Commonwealth ex rel. Brooks,
44 S.W.3d 800, 804 (Ky. Ct. App. 2000);
Hausman’s Adm’r v. Poehlman, 314 Ky.
453, 456, 236 S.W.2d 259 (Ky. Ct. App.
1951).
6 For an in depth discussion of the changes
to FRCP 26, see, “2015 Changes to FRCP
26(b1)(1) and the Expected Impact on Kentucky Practice” Bench and Bar Magazine,
Nov/Dec 2015 at 10.
7 CR 26.02(1).
8 See Memo from Hon. David G. Campbell,
Chair, Advisory Comm. on the Fed. R.
Civ. Procedure to Hon. Jeffrey S. Sutton,
Chair, Standing Comm. on the Fed. R. Civ.
Procedure, Proposed Amendments to the
Federal Rules of Civil Procedure, App. B-8
(June 14, 2014).
9 FRCP 26(b)(2)(i).
10 FRCP 26, Committee Notes.
11 Univ. Med. Ctr., Inc. v. Beglin, 375 S.W.3d
783, 789 (Ky. 2011).
12 Id. at 791-2.
13 Id. at 792.
14 Id. at 791.
15 For instance, Kentucky does not require
the parties to engage in pretrial conferences prior to engaging in discovery,
as required by FRCP 16, thus, amendments regarding timing and sequence
of discovery are not likely to impact
practitioners in state court.
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16 The Advocate