Engagement, Proportionality and Cooperation: Proposed Changes to the Federal Rules of Civil Procedure

Posted on July 3, 2014 by John Barkett

The Advisory Committee on Rules of Civil Procedure has taken a major rulemaking step to bring down the costs of federal court litigation.  Encouraging judges to become more engaged earlier in litigation, modifying the scope of discovery, and eliminating the circuit conflicts on the exercise of inherent authority in sanctioning the loss of electronically stored information are among the changes that will be made if the amendments are adopted.

In my October 17 2013 blog post, I described proposed changes to the Federal Rules of Civil Procedure published for public comment by the Advisory Committee on Civil Rules (of which I am a member).  The Committee received about 2,300 pubic comments on the proposed amendments.  There were three public hearings and the Committee listened to nearly 125 commenters in what amounted to about 25 hours of oral presentations.

The Advisory Committee assimilated these comments and at its meeting on April 10-11, 2014, adopted a final set of amendments.  On May 29-30, the Standing Committee on Rules of Practice and Procedure adopted the proposed amendments.  The votes of both Committees were unanimous.

The proposed reduction in the presumptive limits on depositions and interrogatories, and the proposed creation of a presumptive limit on requests for admissions (except as to authenticity of documents) received the greatest public attention.  The Committee was persuaded by the commenters to leave the existing limits in place and not to create a limit on requests for admission.

The change to Rule 1 received the least amount of public attention.  If it becomes law, it will provide that the rules will be “employed by the court and the parties” to secure the just, speedy, and inexpensive determination of every action.  Cooperation was on the minds of the Advisory Committee as a means to help bring down the costs of litigation without compromising a lawyer’s duty of diligence in representing a client.

Slight changes were made to Rule 16 to encourage district court judges to make maximum use of the initial case management conference to develop an understanding of the claims and defenses and then to keep the parties focused on discovery that is relevant to those claims and defenses.  In addition, Rule 16(b)(3) adds to the potential list of items included in a scheduling order that directs a party to request a conference with the court before moving for an order relating to discovery—consistent with the belief that addressing discovery disputes at their incipiency will reduce costs to all parties.

The public comments also affected the change to Rule 26(b)(1), which addresses the scope of discovery.  New Rule 26(b)(1) contains these changes:

• the words “proportional to the needs of the case” have been added to provide an additional contour on discovery that is otherwise “relevant to any party’s claim or defense”;
• the limits on discovery in current Rule 26(b)(2)(C) (the importance of the issues at stake in the action, amount in controversy, importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefits) were moved directly into (b)(1) as factors to be considered in evaluating proportionality;
• an additional proportionality factor has been added: “the parties’ relative access to relevant information”;
• the current sentence allowing discovery of information “relevant to the subject matter involved in an action” upon a showing of good cause has been deleted; and
• the sentence, “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence,” has been replaced with this sentence: “Information within this scope of discovery need not be admissible in evidence to be discoverable.”

Similar to the goal of greater engagement by the court under Rule 16’s changes, the changes to the scope of discovery are designed to reduce discovery costs by encouraging courts and parties to focus more thoughtfully on what information is important to a fair resolution of a claim.

The Committee decided to replace existing Rule 37(e) with new Rule 37(e) and to leave in the limitation of Rule 37(e) to electronically stored information.  Proposed Rule 37(e) creates a uniform standard nationwide for issuance of an adverse inference instruction for the loss of electronically stored information after a duty to preserve is triggered.  The Advisory Committee chose a bad faith standard (followed in the 5th, 10th, and 11th Circuits) over the negligence standard (followed in the 2nd Circuit).  Specifically, proposed Rule 37(e) provides that, “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,” then a 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.

There will be changes relating to document production.  I note two of them here.  Rule 34 will require that objections to document requests be made “with specificity” and that an objection state whether any responsive materials are being withheld on the basis of the objection.  Proposed Rule 26(d)(2) will allow delivery of a Rule 34 request more than 21 days after service but the request will not be deemed served until after the Rule 26(f) conference.

There will be changes relating to document production.  I note two of them here.  Rule 34 will require that objections to document requests be made “with specificity” and that an objection state whether any responsive materials are being withheld on the basis of the objection.  Proposed Rule 26(d)(2) will allow delivery of a Rule 34 request more than 21 days after service but the request will not be deemed served until after the Rule 26(f) conference.

Rule 84 relating to the forms that appear at the end of the Federal Rules of Civil Procedure has been abrogated.  There were very few public comments on this proposal consistent with the sentiment expressed by many to the Committee that the forms were not used enough to subject them to change through the rulemaking process.  Instead, the Administrative Office of the United States Courts will post forms on its website.  The time limit for service in Rule 4 has also been reduced from 120 days to 90 days.

The next stop for the proposed amendments is the Judicial Conference in September 2014.  Assuming a favorable vote there, the amendments will be transmitted to the Supreme Court and then the Congress.  Assuming no action by either body, they will become part of the Rules of Civil Procedure December 1, 2015.



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