Observing in the committee note that “effective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure,” the amendments would revise Rule 1 to make explicit that the FRCP shall be “employed by the court and the parties” to secure the just, speedy, and inexpensive determination of every action and proceeding, thus emphasizing that litigants share responsibility to employ the rules in a manner consistent with these purposes. Although the advisory committee has noted that this revision “cannot be expected to cure all adversary excesses” and that “it is difficult to identify a proper balance of cooperation with legitimate, even essential, adversary behavior,” the committee expects the change to support judicial efforts to encourage cooperation (a common judicial desire, as reflected by citations to sources such as the Sedona Cooperation Proclamation). The committee also believes that the proposed amendment will help to educate attorneys that cooperation need not be inconsistent with the ethical duties of effective representation.
Streamlining Case Management
Several proposed changes aim to address a perception that the early stages of litigation can take far too long. The proposed amendments include changes to Rules 4(m), 16(b)(2), 16(b)(3), 26(f)(3), 26(c)(1)(B), 26(d)(1), 26(d)(2), and 26(d)(3), and generally tighten initial case-management deadlines.
Under revised Rule 4(m), the time limit for serving a defendant would be reduced from 120 days to 60 days, with a safety valve for good-cause exceptions where necessary. The revision to Rule 16(b)(2) would shorten the time in which a judge must issue a scheduling order (unless there is good cause for delay) from the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared, to 90 days and 60 days, respectively.
The proposed amendment to Rule 16(b)(1) would eliminate the provision that parties may conduct a scheduling conference with the court “by telephone, mail, or other means,” to encourage direct communication and more actively engage judges in case management. In both Rules 16(b)(3) (contents of order) and 26(f)(3) (discovery conference), recognizing the increasing importance of electronic-preservation issues, the amendments would add electronically-stored-information (ESI) preservation to the list of permitted discovery-plan and scheduling-order topics. The amendments would also add Federal Rule of Evidence (FRE) 502 agreements (concerning such topics as privilege waiver, claw-back, and quick-peek agreements, for example) to the list of scheduling-order and discovery-plan topics—reflecting the advisory committee’s concern that FRE 502 is currently underused and the belief that explicitly including it as an option for case management under the FRCP may encourage its more effective use. The Rule 16(b)(3) amendments also would explicitly permit a scheduling order to direct that before moving for a discovery order, the movant must first request a conference with the court, aiming to encourage a procedure that the committee concluded has been effective in reducing cost and delay in the courts that currently employ this practice, such as the Southern District of New York.
The proposed amendments also include revision to Rule 26(d)(1) (timing of discovery), permitting Rule 34 discovery requests to be served in advance of the first Rule 26(f) conference, which would be considered served at the conference. The purpose of this change is not to accelerate the time to respond, but to allow for focused discussion of actual, concrete discovery requests at initial discovery conferences. The committee members observed that some commenters have expressed concern that the amendment might result in overly accelerated early-discovery deadlines, but they noted that a court can adjust time constraints at the Rule 16 conference as needed. Finally, a proposed amendment to Rule 26(d)(3) (sequence of discovery) would allow parties to stipulate to the sequence of discovery, rather than require them to make a formal motion.
Proportionality and the Scope of Discovery
The proposed amendments include a number of changes designed to address discovery proportionality and scope. The committee members observed at the roundtable that these proposals have received considerable attention and comment.
Although current Rule 26(b)(2)(C)(iii) directs that courts must limit discovery consistent with the principles of proportionality, the committee’s comments note that this provision “cannot be said to have realized the hopes of its authors,” for “it is not invoked often enough to dampen excessive discovery demands.” Thus, the proposed amendments would transfer this proportionality language directly into Rule 26(b)(1) (discovery scope), incorporating the concept of proportionality into the rules’ basic definition of discovery scope and providing that 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.
The committee members remarked that there has been considerable discussion about how this revision would affect the scope of discovery in practice. Reactions have ranged from criticism that it may provoke previously avoidable disputes about the proper scope of discovery, to observations that the change simply clarifies and strengthens implementation of objectives that are already incorporated into the FRCP through Rule 26(b)(2)(C)(iii).
In addition, Rule 26(b)(1) would be revised to remove authorization of court-ordered discovery of “any matter relevant to the subject matter involved in the action”—discovery would be limited to the parties’ claims and defenses. The revisions would also delete current Rule 26(b)(1)’s statement that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence,” replacing it with the statement that “[i]nformation within this [Rule 26(b)(1)] scope of discovery need not be admissible in evidence to be discoverable,” to clarify that the “reasonably calculated” language in the current rule is not intended to define the scope of discovery or override the limits established by Rule 26(b)(1).
Another proposal would make explicit that Rule 26(c)(1)(B) grants a court the power to enter protective orders allocating the expenses of discovery, a power that courts already exercise implicitly under current practice.
The proposed amendments would also reduce the presumptive limits on the number of depositions and depositions by written questions (reduced from 10 to 5), interrogatories (reduced from 25 to 15), and requests for admission (limited to 25, except for requests to admit the genuineness of documents), and would reduce deposition lengths from seven hours to six. The committee members noted at the roundtable that the reduction in default deposition limits has provoked a number of critical comments, and they acknowledged that it can be a challenge to design and implement rules that must apply across a wide range of case sizes and types. They observed, however, that all of these limits would continue to be subject to revision in appropriate circumstances by judicial order or stipulation of the parties, and expressed hope that tighter default limits will adjust expectations and encourage greater reflection by parties concerning the appropriate scope of discovery.
On the subject of discovery objections, the proposed amendments to Rule 34(b)(2)(B) and Rule 34(b)(2)(C) (discovery responses and objections) would require parties to (1) state the grounds for an objection with specificity, and (2) state with respect to any objection whether any responsive materials are being withheld on the basis of that objection. The committee note states that this aims to “end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections.” The committee members noted that the purpose of these revisions is to increase transparency, encourage meaningful engagement between the parties early in the discovery process, and streamline discovery disputes, which are a constant source of judicial frustration.
Addressing Spoliation Sanctions Through Amendment to Rule 37(e)
The proposed amendments include a rewrite of Rule 37(e), driven by widespread concern that current Rule 37(e), the so-called safe harbor provision of the 2006 amendments, has not been effective at controlling preservation costs, which can frequently impose significant pre-litigation burdens before a court can participate in guiding the discovery process.
The committee members explained that the central objectives of the proposal are (1) to replace the currently disparate federal treatment of spoliation sanctions with a uniform national standard applying to all preservation sanctions, and (2) to establish that sanctions should be available only if a court finds that a failure to preserve was willful or in bad faith and that it caused substantial prejudice in the litigation, absent the rare case in which a failure to preserve irreparably deprived a party of any meaningful opportunity to present or defend against a claim. The amendment also seeks to encourage the use of curative measures as a remedy for preservation failures, in lieu of sanctions. The committee has noted that it expects the proposed standard to provide significantly more protection from sanctions than is currently provided in at least some circuits; for example, the proposed rule would reject the holding of Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), that negligence can be sufficient culpability to support sanctions. The committee members observed at the roundtable that inconsistencies between the federal circuits have been a source of real concern to parties who cannot determine in advance of litigation what standards they will ultimately have to satisfy.
As the committee note observes, “the amended rule is designed to ensure that potential litigants who make reasonable efforts to satisfy their preservation responsibilities may do so with confidence that they will not be subjected to serious sanctions despite these efforts.” The committee members noted that the proposal has sparked considerable discussion, both through the formal comment process and more general public debate. They commented that the Rule 37(e) proposal is the result of three years of still ongoing discussion and deliberation and that the committee has specifically invited input from the public on a number of questions concerning the proposed revisions:
- Should the rule be limited to sanctions for loss of ESI?
- Should Rule 37(b)(1)(B)(ii), which would permit sanctions even in the absence of willfulness or bad faith if a party was irreparably deprived of any meaningful opportunity to present or defend against a claim, be retained in the rule?
- Should there be additional definition provided in the rule for “substantial prejudice,” “willfulness,” or “bad faith”? Should the factors for assessing a party’s conduct that are provided in proposed Rule 37(e)(2) be retained in whole or in part?
- Should current Rule 37(e) be retained alongside the new rule?
Comments to the proposed amendments may be submitted through February 15, 2014.
Keywords: litigation, pretrial practice, discovery, FRCP, sanctions, proportionality, federal rule revisions, civil procedure
Jay Worthington is a partner and Katherine Kenney is an associate with Paul Hastings in New York, New York. Emily Seymore is an associate with the firm in Chicago, Illinois.