Major changes are in the works for key provisions of the Federal Rules of Civil Procedure, including limitations on discovery and spoliation sanctions. This is the so-called “Duke Rules Package,” developed by the Civil Rules Advisory Committee following a conference at Duke Law School in May 2010, which addressed the prohibitive costs of discovery and resulting inaccessibility of federal courts for many litigants.
In the Winter 2013 issue of Litigation News, I discussed the proposed amendment to Rule 37(e). The current rule affords a safe harbor for “failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” The new rule applies to all discoverable information and is aimed at ensuring that litigants who make reasonable efforts to meet their preservation responsibilities will not be sanctioned if information is lost.
While this proposed amendment, creating a uniform national standard for the imposition of spoliation sanctions, has received much comment during the past year, only now are the remaining proposed amendments coming under the spotlight and garnering much controversy. This column summarizes those proposals. In my next column, I will discuss the criticisms swirling around them.
There are three sets of proposals. The first seeks improvement in effective judicial case management; the second is aimed at proportionality in discovery; and the third hopes to advance cooperation.
Rule 4(m) is revised to shorten the time to serve the summons and complaint from 120 days to 60 days. The time limits in Rule 16(b)(2) (Time for Scheduling Order) are cut to 90 days after any defendant is served or 60 days after any defendant appears. A scheduling conference under amended Rule 16(b)(1)(B) will require simultaneous communication; conference by mail is disallowed. New Rule 16(b)(3)(v) permits a scheduling order to “direct that before moving for an order relating to discovery the movant must request a conference with the court.” New Rule 26(d)(2) authorizes the issuance of Rule 34 requests for production 21 days after service of the summons and complaint with the date of service effective on the date of the first Rule 26(f) parties’ planning conference.
The cost-benefit analysis now buried in Rule 26(b)(2)(C)(iii) is front-loaded in Rule 26(b)(1) to establish that discovery must be “proportional to the needs of the case considering the amount in controversy, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Likewise, amended Rule 26(b)(1) limits discovery to the parties’ claims or defenses; discovery embracing “subject matter involved in the action” will no longer be permissible. The new rule also clarifies that discovery of inadmissible information “reasonably calculated to lead to the discovery of admissible evidence” does not expand the boundaries of discovery. Whatever discovery is sought must relate to the claims and defenses raised. New Rule 26(c)(1)(B) expressly authorizes the court to enter a protective order allocating discovery expenses.
Numerical limits are reduced. The presumptive cap on depositions goes from 10 to 5, and their presumptive maximum duration shrinks from 7 hours to 6 hours. Rule 30(a)(2)(A)(1) and (d)(1). The presumptive limit on interrogatories is reduced from 25 to 15. Rule 33(a)(1). New Rule 36(a)(2) sets a cap of 25 requests for admission. Amended Rule 34(b), while it does not cap requests for production, tightens the requirements for responses. Grounds for objection to any request must be stated with specificity. Further, “an objection must state whether any responsive materials are being withheld on the basis of that objection.” Finally, “[p]roduction must . . . be completed no later than the time for inspection stated in the request or a later reasonable time stated in the response.”
Rule 1 is amended to provide that the parties shall share responsibility for achieving the rule’s aspirations. “These rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”
Written comments to these proposals are due by February 15, 2014, and may be submitted electronically by following the instructions at http://bit.ly/proposed-amendments. Hard copy submissions may be mailed to the Committee on Rules of Practice and Procedure, Administrative Office of the United States Courts, Suite 7-240, Washington, D.C., 20544.
