September 09, 2014 civil procedure

Standing Committee Approves Proposed Rules: The Judicial Conference Is Next

By Charles S. Fax

In 2010, approximately 200 distinguished federal civil litigators, judges, professors, and commentators convened at Duke University to consider reforms to the Federal Rules of Civil Procedure to address the growing complexity and expense of discovery. Included in the “Duke Rules Package” that emerged was a proposal to reduce the presumptively allowable number of depositions and written discovery requests under Rules 30, 31, 33, and 36.

Over the ensuing three years, the Advisory Committee on Civil Rules evaluated the package, drafted additional proposed changes, and in August 2013, published its proposal for comment. That triggered an unprecedented public response—much of it critical of one or another proposal—including more than 2,300 written comments and testimony from over 120 witnesses at 3 hearings around the country.

In response, the Advisory Committee altered a number of its proposals—including elimination of the proposed curtailment of depositions and written discovery requests—and submitted them to the Standing Committee on Rules of Practice and Procedure. On May 29–30, 2014, the Standing Committee unanimously approved all of the proposals and forwarded them to the Judicial Conference. If approved by the conference, they will go to the Supreme Court, which will act before May 2015. If the Court approves the package, it will go to Congress, which will have until December 1, 2015, to block the new rules from taking effect. Failing that, they will become effective on December 1, 2015. Here are some highlights:

  • Rule 1: The parties are enjoined to “construe, administer, and employ” the rules to secure the “just, speedy, and inexpensive determination” of claims.
  • Rule 4(m): The time limit for service of a summons and complaint is 90 days.
  • Rule 16(b)(2) and (3): Absent a finding of good cause for delay, the judge must issue a scheduling order within the earlier of 90 days after any defendant is served or 60 days after any defendant has appeared. The order may provide for preservation of electronically stored information (ESI), include agreements reached under Rule 502 of the Federal Rules of Evidence, and direct that a movant in a discovery dispute must request a pre-motion conference with the court.
  • Rule 26(b), (d), and (f): The “proportionality” requirement is moved forward to Rule 26(b)(1) to emphasize that discovery must be “proportional to the needs of the case, considering the importance of the issues [and the discovery in resolving them] . . . the amount in controversy, the parties’ relative access to relevant information [and] resources, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Rule 34 requests may be served three weeks after service of the summons and complaint and, if so served, are to be deemed served as of the first Rule 26(f) conference. The Rule 26(f) discovery plan should address any issues concerning preservation of ESI and whether to ask for an order under  Evidence Rule 502.
  • Rules 30(a) and (b), 31(a), and 33(a): “Proportionality” is incorporated to allow for greater discovery, when appropriate, than presumptively authorized by the rules.
  • Rule 34(b): Grounds for objection must be stated with specificity, and the objection must state whether any responsive materials are being withheld on the basis of the objection.
  • Rule 37(e): Under Rule 37(e)(1), if ESI that should have been preserved “is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court may,” upon finding prejudice to another party, order measures “no greater than necessary to cure the prejudice.” Under Rule 37(e)(2), only upon finding that the party acted with the intent to deprive the other party  of the information, the court 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.”

Practitioners may be skeptical that these amendments will reduce the complexity and cost of federal civil litigation. To the contrary, experience teaches that litigation likely will continue to grow more complex and expensive, beyond the reach of those with modest (non-fee-shifting) claims. Still, the changes are laudable—especially proposed Rule 37(e), which promises to bring rationality and consistency to the developing law of spoliation.

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

Keywords: Federal Rules of Civil Procedure, Rule 37(e), discovery, electronically stored information, ESI, Judicial Conference

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