THE JUST, SPEEDY AND INEXPENSIVE DETERMINATION

OF EVERY ACTION: FEDERAL EFFORTS TO IMPROVE

CIVIL LITIGATION

CLE Credit: 1.0 Thursday, May 12, 2016

3:45 p.m. - 4:45 p.m. Cascade Ballroom A

Kentucky International Convention Center Louisville, Kentucky

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The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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TABLE OF CONTENTS The Presenters ................................................................................................................. i The Just, Speedy and Inexpensive Determination of Every Action: Federal Efforts to Improve Civil Litigation ........................................................................ 1 2015 Amendments to the Federal Rules of Civil Procedure ............................................. 5

THE PRESENTERS

Judge Jeffrey S. Sutton United States Court of Appeals for the Sixth Circuit

85 Marconi Boulevard Columbus, Ohio 43215

(614) 849-0134 JUDGE JEFFREY S. SUTTON is a judge for the United States Court of Appeals for the Sixth Circuit. Prior to this, he was a partner with the law firm of Jones, Day, Reavis & Pogue, Columbus, Ohio branch since 1996. Before that he was an associate with the firm where he specialized in commercial litigation, constitutional litigation, and appellate practice. Since 1993, Judge Sutton has been an Adjunct Professor of Law at the Ohio State University College of Law, teaching seminars on the United States Constitution and state constitutional law. Since 2012, Judge Sutton has taught a class on state constitutional law at Harvard Law School. From 1995 to 1998 he was State Solicitor of Ohio overseeing all appellate litigation on behalf of the attorney general and participating in complex litigation on her behalf at the trial level. In 1991 and 1992, Judge Sutton worked as a law clerk to the Honorable Lewis F. Powell, Jr., Associate Justice (Ret.) and the Honorable Antonin Scalia, Associate Justice for the Supreme Court of the United States. Judge Sutton has argued twelve cases in the United States Supreme Court. He received his B.A. from Williams College and his J.D. from the Ohio State University College of Law.

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Judge Amul R. Thapar United States District Court Eastern District of Kentucky United States District Courthouse 35 West Fifth Street, Suite 473 Covington, Kentucky 41011 (859) 392-7946 JUDGE AMUL R. THAPAR, a United States District Judge for the Eastern District of Kentucky, has the privilege of being the first South Asian Article III judge. President George W. Bush nominated him to the federal bench on May 24, 2007, and the United States Senate confirmed him by unanimous consent on December 13, 2007. Prior to his confirmation, Judge Thapar served as the United States Attorney for the Eastern District of Kentucky. During that time he was appointed to the Attorney General's Advisory Committee (AGAC) and chaired the AGAC's Controlled Substances and Asset Forfeiture subcommittee. He also served on the Terrorism and National Security subcommittee, the Violent Crime subcommittee, and Child Exploitation working group. Judge Thapar has also worked for the law firms of Williams & Connolly in Washington, D.C., Squire, Sanders & Dempsey in Cincinnati, and served as an Assistant United States Attorney in both the Southern District of Ohio and the District of Columbia. Between 1994 and 1997, Judge Thapar served as a law clerk to the Honorable S. Arthur Spiegel, who sits on the United States District Court for the Southern District of Ohio, and the Honorable Nathaniel R. Jones, who sat on the United States Court of Appeals for the Sixth Circuit. In the past year, Judge Thapar has taught at the University of Virginia School of Law, Vanderbilt Law School, and the Northern Kentucky University Chase College of Law. Judge Thapar received his undergraduate degree from Boston College and his law degree from the University of California, Berkeley.

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Judge Gregory F. Van Tatenhove United States District Court Eastern District of Kentucky

354 Federal Building 330 West Broadway

Frankfort, Kentucky 40601 (502) 875-4777

JUDGE GREGORY F. VAN TATENHOVE was nominated by President George W. Bush and confirmed by the United States Senate on December 21, 2005. Prior to his appointment to the court, Judge Van Tatenhove served over four years as the United States Attorney for the Eastern District of Kentucky. His career includes service as a federal judicial law clerk and Department of Justice trial attorney (Honors Program). He also served as a legislative assistant to United States Senator Mitch McConnell and legislative aide, press secretary, chief of staff and legal counsel to members of the United States House of Representatives. Judge Van Tatenhove served as president of the Asbury University Alumni Board and vice-chair of the Asbury Board of Trustees. He is presently a member of the University of Kentucky College of Law Board of Visitors. He also chairs the Sixth Circuit Pattern Jury Instruction Committee. A frequent speaker at events for the bench and bar, in 2009 Judge Van Tatenhove travelled to Amman, Jordan as the keynote speaker at a conference for Jordanian judges. And in 2016 he spent a week in Monrovia, Liberia training judges, prosecutors, and law enforcement officers. In recent years he has also hosted judicial delegations from Albania and Turkey. Judge Van Tatenhove is a graduate of Asbury University and the University of Kentucky College of Law.

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THE JUST, SPEEDY, AND INEXPENSIVE DETERMINATION OF EVERY ACTION: FEDERAL EFFORTS TO IMPROVE CIVIL LITIGATION

Judge Jeff Sutton and Judge Amul Thapar I. THE PROBLEM

Many civil litigants feel that federal pretrial discovery takes too long and costs too much. Open-ended discovery rules, coupled with arms-length management by the courts, risks encouraging parties to use onerous and inefficient discovery requests to their strategic benefit. This risk is particularly stark in cases involving an asymmetry of information and resources among parties. Expansive production requests may, for example, give resource-rich defendants an undue bargaining advantage relative to individual plaintiffs. The increasingly predominant use of e-discovery can deepen these problems, giving parties with greater access to advanced technology a critical advantage.

More broadly, recent national surveys of civil attorneys reveal the following concerns about discovery:

In a study conducted by the Federal Judicial Conference in 2010, 58

percent of attorneys indicated the cost of federal litigation, including the cost of discovery, had caused at least one client to settle a case it otherwise would not have settled.1

In a 2010 survey of ABA Litigation Section members, more than 80

percent agreed that the cost of discovery was disproportionately high in small cases, and 40 percent felt the cost was disproportionately high in large cases.2

Again in 2010, a survey of corporate counsel by the Institute for the

Advancement of the American Legal System ("IAALS") showed that 90 percent of polled attorneys felt discovery costs in federal court were generally not proportional to the needs of the case, and only 20 percent agreed that outcomes were driven more by the merits of the case than by the costs.3

In a related report, the IAALS noted that between 61 percent and

76 percent of surveyed attorneys felt that judges do not sufficiently enforce proportionality limitations.4

1 Memorandum from Hon. David G. Campbell, Advisory Committee on Civil Rules, to Hon. Jeffrey Sutton, Chair, Committee on Rules of Practice and Procedure, at 6 (May 2, 2014) (available at http://www.uscourts.gov/file/17931/download). 2 Id. at 7. 3 Id. 4 Id.

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These concerns reflect a need for greater judicial involvement in case management, an elevated commitment to the efficient resolution of discovery disputes, and a more thoughtful balancing of burdensome discovery requests against the resources of the parties and the needs of the case.

II. THE REFORMS

The 2015 amendments to the Federal Rules of Civil Procedure seek to address many of the concerns highlighted above. Below is a sampling of the most important reforms contained in these amendments:

A. Scheduling Order

Rule 16(b)(2) previously required courts to issue a scheduling order within 120 days after any Defendant had been served or ninety days after any defendant had appeared, whichever was earlier. In order to promote the more efficient resolution of discovery disputes, the revised rule now requires courts to issue an order within the earlier of ninety days after any defendant has been served or sixty days after any defendant has appeared.

B. Proportionality

1. The new rules bring the concept of "proportionality" to the forefront

of the courts' and the parties' attention. Rule 26(b)(1) now states that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." To determine what evidence may be "proportional to the needs of the case," courts and parties must first consider:

a. The importance of the issues at stake in the action; b. The amount in controversy; c. The parties' relative access to relevant information; d. The parties' resources; e. The importance of the discovery in resolving the issues; f. Whether the burden or expense of the proposed discovery

outweighs its likely benefit.

All of these factors previously appeared in Rule 21(b)(2) or Rule 26(g). By relocating these considerations to Rule 21(b)(1), the new rules emphasize the proportionality factors' decisive role in defining the scope of discovery.

2. Admissibility: Rule 26(b)(1) formerly stated that "[r]elevant

information need not be admissible at the trial if the discovery

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appears reasonably calculated to lead to the discovery of admissible evidence."

Practitioners habitually misunderstood this language to

suggest that any information "reasonably calculated to lead to the discovery of admissible evidence" was fair game at the discovery stage. In fact, the "reasonably calculated" language only defined the scope of relevant information. But a request for relevant information may still reach beyond the scope of discovery if that request, in view of the factors outlined above, is not proportional to the needs of the case.

The new rule attempts to eliminate this confusion

by deleting the "reasonably calculated" language and simply stating that "[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable."

C. Producing Documents and Electronic Discovery

1. Rule 37(c): Objections. Under the new rules, a party objecting to

a discovery request must expressly state whether any responsive materials are being withheld on the basis of that objection.

This amendment should eliminate the confusion that

previously arose when a party stated an objection to a discovery request but nevertheless produced some information. In such cases, it was unclear whether the producing party had withheld any responsive information on the basis of that objection.

2. Rule 37(e): Failure to Preserve Electronically Stored

Information: The new rules also apply the concept of proportionality to the parties' duty to preserve electronically stored information. Previously, courts could impose severe sanctions after finding that a party had not taken sufficient steps to preserve this information. The new rules clarify both the preservation responsibilities of the parties and the discretion of the court to impose sanctions in this context.

a. If a party fails to take reasonable steps to preserve

electronically stored information and that information is irretrievably lost, the court must first ask whether the opposing party suffered any prejudice as a result of that loss. If the party did indeed suffer some prejudice, the court may only take "measures no greater than necessary to cure the prejudice."

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b. If, however, the court finds that a party intentionally destroyed this information or otherwise rendered the information inaccessible, the Court may:

i. Presume that the lost information was unfavorable

to the party; ii. Instruct the jury that it may or must presume the

information was unfavorable to the party; or iii. Dismiss the action or enter a default judgment

* A full description of the 2015 amendments to the civil rules follow and can be found at http://www.supremecourt.gov/orders/courtorders/frcv15_5h25.pdf.

III. LOOKING FORWARD

Previous discovery rules encouraged litigators to become "discovery lawyers" rather than trial lawyers, devoting the vast majority of their work lives to lengthy and demoralizing discovery disputes. The new rules aim to empower attorneys to do what they entered the profession to do – enter a courtroom and vigorously argue the merits of a case.

A. These reforms may also rein in the widening use of alternative dispute

resolution as a cheaper, more efficient substitute for trying a case in federal court. By streamlining the discovery process and actively policing discovery abuses, the federal bench should more effectively compete for the business of future litigants.

B. Relatedly, the hope is that the new rules – and those that follow – will

increase public confidence in the federal judicial system. These reforms may help dispel the notion that federal court is the place where litigation goes to die, and promote the idea that federal courts are a cost-effective forum for actually resolving disputes.

C. The new rules, then, will serve three interrelated goals – making better

and happier lawyers, reducing the cost of litigation, and increasing public confidence in the system.

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2015 AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE

April 29, 2015 Honorable John A. Boehner Speaker of the House of Representatives Washington, D.C. 20515 Dear Mr. Speaker: I have the honor to submit to the Congress the amendments to the Federal Rules of Civil Procedure that have been adopted by the Supreme Court of the United States pursuant to Section 2072 of Title 28, United States Code. Accompanying these rule are excerpts from the Reports of the Committee on Rules of Practice and Procedure to the Judicial Conference of the United States containing the Committee Notes submitted to the Court for its consideration pursuant to Section 331 of Title 28, United States Code.

Sincerely,

/s/ John G. Roberts

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April 29, 2015 Honorable Joseph R. Biden, Jr. President, United States Senate Washington, D.C. 20510 Dear Mr. President: I have the honor to submit to the Congress the amendments to the Federal Rules of Civil Procedure that have been adopted by the Supreme Court of the United States pursuant to Section 2072 of Title 28, United States Code. Accompanying these rules are excerpts from the Reports of the Committee on Rules of Practice and Procedure to the Judicial Conference of the United States containing the Committee Notes submitted to the Court for its consideration pursuant to Section 331 of Title 28, United States Code.

Sincerely,

/s/ John G. Roberts

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April 29, 2015

SUPREME COURT OF THE UNITED STATES ORDERED:

1. That the Federal Rules of Civil Procedure be, and they hereby are, amended by including therein amendments to Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84, and the Appendix of Forms.

[See infra., pp. __ __ __.]

2. That the foregoing 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.

3. That THE CHIEF JUSTICE be, and hereby is, authorized to transmit to the Congress the foregoing amendments to the Federal Rules of Civil Procedure in accordance with the provisions of Section 2072 of Title 28, United States Code.

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PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE Rule 1. Scope and Purpose

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They 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. Rule 4. Summons

* * * * * (d) Waiving Service.

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

* * * * *

(C) be accompanied by a copy of the complaint, 2 copies of the

waiver form appended to this Rule 4, and a prepaid means for returning the form;

(D) inform the defendant, using the form appended to this Rule

4, of the consequences of waiving and not waiving service;

* * * * * (m) Time Limit for Service. If a defendant is not served within 90 days after the

complaint is filed, the court – on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).

* * * * *

Rule 4 Notice of a Lawsuit and Request to Waive Service of Summons.

(Caption) To (name the defendant or — if the defendant is a corporation, partnership, or association — name an officer or agent authorized to receive service):

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Why are you getting this?

A lawsuit has been filed against you, or the entity you represent, in this court under the number shown above. A copy of the complaint is attached.

This is not a summons, or an official notice from the court. It is a request that, to avoid expenses, you waive formal service of a summons by signing and returning the enclosed waiver. To avoid these expenses, you must return the signed waiver within (give at least 30 days or at least 60 days if the defendant is outside any judicial district of the United States) from the date shown below, which is the date this notice was sent. Two copies of the waiver form are enclosed, along with a stamped, self-addressed envelope or other prepaid means for returning one copy. You may keep the other copy.

What happens next?

If you return the signed waiver, I will file it with the court. The action will then proceed as if you had been served on the date the waiver is filed, but no summons will be served on you and you will have 60 days from the date this notice is sent (see the date below) to answer the complaint (or 90 days if this notice is sent to you outside any judicial district of the United States).

If you do not return the signed waiver within the time indicated, I will arrange to have the summons and complaint served on you. And I will ask the court to require you, or the entity you represent, to pay the expenses of making service.

Please read the enclosed statement about the duty to avoid unnecessary expenses.

I certify that this request is being sent to you on the date below. Date: (Signature of the attorney or unrepresented party) (Printed name) (Address) (E-mail address) (Telephone number)

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Rule 4 Waiver of the Service of Summons.

(Caption) To (name the plaintiff's attorney or the unrepresented plaintiff):

I have received your request to waive service of a summons in this action along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you.

I, or the entity I represent, agree to save the expense of serving a summons and complaint in this case.

I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court's jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service.

I also understand that I, or the entity I represent, must file and serve an answer

or a motion under Rule 12 within 60 days from , the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment will be entered against me or the entity I represent. Date: (Signature of the attorney or unrepresented party) (Printed name) (Address) (E-mail address) (Telephone number)

(Attach the following)

Duty to Avoid Unnecessary Expenses of Serving a Summons

Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summons and complaint. A defendant who is located in the United States and who fails to return a signed waiver of service requested by a plaintiff located in the United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure.

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"Good cause" does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court has no jurisdiction over this matter or over the defendant or the defendant's property.

If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of a summons or of service.

If you waive service, then you must, within the time specified on the waiver form, serve an answer or a motion under Rule 12 on the plaintiff and file a copy with the court. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served. Rule 16. Pretrial Conferences; Scheduling; Management

* * * * * (b) Scheduling.

(1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge – or a magistrate judge when authorized by local rule – must issue a scheduling order:

(A) after receiving the parties' report under Rule 26(f); or (B) after consulting with the parties' attorneys and any

unrepresented parties at a scheduling conference.

(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.

(3) Contents of the Order.

* * * * *

(B) Permitted Contents. The scheduling order may:

* * * * *

(iii) provide for disclosure, discovery, or preservation of electronically stored information;

(iv) include any agreements the parties reach for asserting

claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502;

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(v) direct that before moving for an order relating to discovery, the movant must request a conference with the court;

(vi) set dates for pretrial conferences and for trial; and (vii) include other appropriate matters.

* * * * *

Rule 26. Duty to Disclose; General Provisions Governing Discovery

* * * * * (b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

(2) Limitations on Frequency and Extent.

* * * * *

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

* * * * *

(iii) the proposed discovery is outside the scope permitted by

Rule 26(b)(1).

* * * * * (c) Protective Orders.

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending – or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to

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protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

* * * * *

(B) specifying terms, including time and place or the allocation of

expenses, for the disclosure or discovery;

* * * * * (d) Timing and Sequence of Discovery.

* * * * *

(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.

(3) Sequence. Unless the parties stipulate or the court orders otherwise for

the parties' and witnesses' convenience and in the interests of justice:

(A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay

its discovery.

* * * * * (f) Conference of the Parties; Planning for Discovery.

* * * * *

(3) Discovery Plan. A discovery plan must state the parties' views and proposals on:

* * * * *

(C) any issues about disclosure, discovery, or preservation of

electronically stored information, including the form or forms in which it should be produced;

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(D) any issues about claims of privilege or of protection as trial-preparation materials, including – if the parties agree on a procedure to assert these claims after production – whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;

* * * * *

Rule 30. Depositions by Oral Examination (a) When a Deposition May Be Taken.

* * * * *

(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2):

* * * * *

(d) Duration; Sanction; Motion to Terminate or Limit.

(1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours. The court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

* * * * *

Rule 31. Depositions by Written Questions (a) When a Deposition May Be Taken.

* * * * *

(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2):

* * * * *

Rule 33. Interrogatories to Parties (a) In General.

(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2).

* * * * *

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Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

* * * * * (b) Procedure.

* * * * *

(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.

(B) Responding to Each Item. For each item or category, the

response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

(C) Objections. An objection must state whether any responsive

materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

* * * * *

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (a) Motion for an Order Compelling Disclosure or Discovery.

* * * * *

(3) Specific Motions.

* * * * *

(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:

* * * * *

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(iv) a party fails to produce documents or fails to respond that inspection will be permitted – or fails to permit inspection – as requested under Rule 34.

* * * * *

(e) Failure to Preserve Electronically Stored Information. If electronically stored

information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may

order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive

another party of the information's use in the litigation may:

(A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was

unfavorable to the party; or (C) dismiss the action or enter a default judgment.

* * * * *

Rule 55. Default; Default Judgment

* * * * * (c) Setting Aside a Default or a Default Judgment.

The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b).

* * * * * Rule 84. Forms [Abrogated (Apr. __, 2015, eff. Dec. 1, 2015).] APPENDIX OF FORMS [Abrogated (Apr. __, 2015, eff. Dec. 1, 2015).]

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