January 27, 2014 Articles

FRCP Proposed Amendments: Changing the Rules

A detailed look at ways the amendments would alter how discovery and case management are handled.

By Jay Worthington, Emily Seymore, and Katherine Kenney

On August 15, 2013, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States published for public comment a draft of proposed amendments to the Federal Rules of Civil Procedure (FRCP). Spurred by concerns about the increasing burdens of civil litigation and escalation of discovery and preservation costs, the proposed amendments include provisions aimed to (1) emphasize proportionality in defining the scope of discovery, (2) streamline and expedite discovery and case-management procedures, (3) encourage cooperation among litigants, and (4) update the rules’ approach to spoliation issues. The proposed amendments have been the subject of ongoing public hearings and meetings dating back to the 2010 Duke Conference on Civil Litigation, and will be further discussed at a public hearing on February 7, 2014, in Dallas, Texas.

On November 20, 2013, the Pretrial Practice and Discovery Committee of the ABA Section of Litigation sponsored a roundtable at which two members of the Judicial Conference’s Advisory Committee on Civil Rules, John Barkett and Elizabeth Cabraser, described the committee’s objectives behind the proposed amendments and discussed some of the feedback that the committee has received. They highlighted that the overarching goal of the amendments is to reduce litigation costs, particularly discovery costs, by promoting more active judicial case management, encouraging judges and lawyers to work together, and emphasizing proportionality as a constraint to the scope of discovery. They also discussed the committee’s goals in seeking to establish more uniform standards for spoliation analysis, to reduce the current costs of uncertainty that frequently confront parties when assessing their preservation obligations.

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