Posted on October 17, 2013 by John Barkett
The Federal Rules of Civil Procedure are 75 years old—they went into effect on September 16, 1938. The Advisory Committee on Civil Rules has just published for public comment very significant changes to the FRCP. Every environmental litigator—indeed, every litigator—should read them. The changes are too numerous to outline completely in this blog posting, but let me highlight the proposed changes to the discovery rules.
Rule 26(b)(1), which addresses the “scope” of discovery, would be changed in three important ways. First, discovery would be limited solely to matters relevant to a party’s “claim or defense” and the former text also permitting for good cause discovery of matters “relevant to the subject matter involved in the action” will be deleted. Second, the word “proportionality” will be included in the scope of discovery. The proportionality factors that were in Rule 26(b)(2)(C) will be included specifically in the scope of discovery in Rule 26(b)(1). With the proposed change, discovery must be “proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, 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.” Finally, the text “calculated to lead to the discovery of admissible evidence” has been deleted. The goal of this text originally was to make it clear that information like hearsay could be discovered since it might lead to discoverable admissible evidence. But this language has been used by many courts to expand the scope of discovery beyond its original purpose. In its place, the proposed rule will read: “Information within this scope of discovery need not be admissible in evidence to be discoverable.”
Rules 30 and 31 will be amended so that the presumptive limit of 10 depositions per side or for third parties and a duration limit of 7 hours for each deposition are reduced to 5 depositions per side with a maximum duration of 6 hours. Rules 30 and 31 still would require the district court to grant leave to take more depositions as long as that outcome is consistent with Rules 26(b)(1) and (2) (currently the reference is just to Rule 26(b)(2)). Parties can stipulate to have more depositions; there is no change there. And parties can still stipulate to longer depositions and the court “must” still allow additional time “consistent with Rules 26(b)(1) and (b)(2)” (again Rule 26(b)(1) has now been added to this phrase) if needed to fairly examine the deponent, or if the deponent, another person, or any other circumstance impedes or delays the examination.
Interrogatories would be limited to 15 instead of 25 under a change to Rule 33 and for the first time requests for admissions under Rule 36 would be limited to 25 requests except as to the genuineness of documents.
With respect to responses to Rule 34 requests for production, Rule 34(b)(2)(B) would require that the grounds for objecting to a request be stated with specificity. Rule 34(b)(2)(C) would then require that an objection state whether any responsive materials are being withheld on the basis of that objection. But an objection can state that documents are not being searched if that is the case (e.g., that a search was limited to documents created after a specific date). Where a party states that it will produce documents or electronically stored information instead of permitting inspection, the production must be completed no later than the time for inspection in the request or a later reasonable time stated in the response. A corresponding change will be made to Rule 37(a)(3)(B)(iv) to provide that a party seeking discovery may move for an order compelling production if a party “fails to produce documents.”
There are other changes to Rule 26 and 37 as well as proposed changes to Rules 1, 4, and 16. You can read them all on the website of the Administrative Office of the U.S. Courts.
As a member of the Advisory Committee on Civil Rules, let me also encourage readers to submit comments on the proposed rules if you believe the proposals can be improved upon or should not be implemented. Commenting is easy. Go to the link above and follow the instructions to “Comment Now!” The comment period ends February 15, 2014.