April 16, 2014 civil procedure

Proposed Changes to Federal Rules Prompt Pushback

By Charles S. Fax

On August 13, 2013, the Civil Rules Advisory Committee invited comment on proposed amendments to the Federal Rules of Civil Procedure dealing with discovery and spoliation sanctions. Since then, the committee received over 2,000 sets of written comments and heard testimony at three hearings. In the Winter 2013 issue of Litigation News, I discussed the proposed amendment to Rule 37(e) (spoliation sanctions). In the Winter 2014 issue, I summarized the remaining proposals, which concern effective judicial case management, proportionality, and cooperation in discovery. Here I review the bar’s critique of the recommended changes and the committee’s recent withdrawal of many of its recommendations in response to those criticisms.

In the main, the usual players proffered predictable positions. The plaintiffs’ bar was represented by such groups as the Legal Aid Society of New York City, the National Employment Lawyers Association, the American Association of Justice, the NAACP Legal Defense and Educational Fund, and the Lawyers Committee for Civil Rights under Law. Speaking for the defense bar were, among others, the Defense Research Institute, the International Association of Defense Counsel, the U.S. Chamber of Commerce, and the Federation of Defense and Corporate Counsel.

Plaintiffs’ counsel derided most of the proposed changes—including the reduced caps on interrogatories, requests for admission, and depositions, and perceived weight placed on damages as an element of proportionality in discovery—as inimical to the search for justice. These commentators feared that the rules would facilitate defendants’ obfuscation and concealment of discoverable information, especially in complex cases and those where the defendants control the evidence. Some plaintiffs’ counsel warned that the suggested standard for sanctions under Rule 37(e) was too high. The defense bar, generally speaking, lauded all of the recommendations as corrective of the perceived widespread abuse of discovery.

A third group of commentators represented plaintiffs and defendants. This cohort included, among others, the New York County Lawyers Association (NYCLA), the Pennsylvania Bar Association (PBA), the membership of the ABA Standing Committee on Federal Judicial Improvements (ABA Commentators), the American Trial Lawyers Association, and several large law firms. Their comments were more nuanced than those of the referenced interest groups and are especially noteworthy for that reason.

For example, while the plaintiffs’ bar rejected further restrictions on paper discovery and depositions, the ABA commentators distinguished between the proposed deposition cap and the cap on requests for admission, disfavoring the former but supporting the latter. Concerning the former, they made a point common to many of the criticisms: If there is no compelling evidence of abuse of the current 10-deposition presumptive limit, why reduce it? The NYCLA recognized the need to expedite litigation but also asserted that the proposed discovery reduction rules would not solve the problem. While the PBA supports a lowered cap on depositions, it argued that the presumptive limit should be higher than the five-deposition cap proposed by the committee. A Big Law attorney who represents plaintiffs and defendants lauded the reduced caps on discovery, stating, based on his experience, that parties will readily agree to expanded limits where appropriate.

Plaintiffs’ representatives were also exercised by the proposed shift of the cost-benefit analysis from Rule 26(b)(2(C)(iii) to Rule 26(b)(1), and the clarification that discovery of inadmissible information “reasonably calculated to lead to the discovery of admissible evidence” does not expand the bounds of “relevance” for discovery purposes. The neutral commentators generally favored (or were silent as to) these changes, however, while a few suggested that Rule 26(b)(1) needs yet further precision.

As to Rule 37(e), some in the defense bar argue that sanctions should be reserved for those whose conduct is “willful and in bad faith,” as opposed to “willful or in bad faith,” as the proposal reads. The ABA commentators criticize the term “willful” as ambiguous; rather, the threshold for sanctions should be gross negligence or recklessness. They also argued that the moving party should not have the burden to prove prejudice from the lost material, as the movant often will not know what evidence has been destroyed.

The committee, in response to the criticisms, withdrew its proposal to reduce the presumptive numbers of depositions, interrogatories, requests to admit, and deposition length. Most of the other proposals are going forward, but Rule 37(e) remains in flux. Stayed tuned.

The agenda for the April 2014 meeting of the Advisory Committee on Civil Rules summarizes the most recent changes in the committee’s proposal.


Charles S. Fax is an associate editor for Litigation News.

Keywords: Federal Rules of Civil Procedure, Rule 37(e), discovery, spoliation, sanctions, case management

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<a href="mailto:cfax@rlls.com">Charles S. Fax</a> &ndash; April 16, 2014