The Civil Rules Advisory Committee released their proposed amendments to the Federal Rules of Civil Procedure in August. The Committee is seeking comment on their proposals through February 15, 2014, and we have summarized these potential changes below.
Early Court Intervention
The Committee has found that early court intervention has substantially increased cooperation, which in turn reduces the expense and time that discovery takes. To that end, they are proposing a revision to Rule 1 that allows for persons “employed by the court and the parties” to “secure the just, speedy, and inexpensive determination of every action and proceeding.” The goal of this revision is to support efforts by the court to facilitate more cooperation among parties and their counsel.
In keeping with the goal of promoting more cooperation by allowing for early court intervention in discovery, proposed changes to Rule 16(b)(1) require that conferences be scheduled face-to-face or by some other direct, simultaneous communication. This both saves time by preventing asynchronous communication and could allow for earlier involvement of the courts. Accompanying changes to Rule 26(d)(2) allow parties to serve document requests 21 days after service of the summons and complaint. The producing party would not be required to produce documents until 30 days after the Rule 26(f) conference. Together these changes are intended to make those conferences more effective if the parties have specific requests to discuss. The court would also have the ability to intervene to resolve disputes earlier than current rules allow. The newly proposed Rule 16(b)(3)(v) states that scheduling orders may require that a party request a conference with the court prior to moving for an order to resolve a discovery dispute. This addition aims to stop potentially costly and time-consuming motions before they can begin.
Duty to Preserve and Proportionality of Discovery
Existing Rule 26(b)(2)(c)(iii) requires the court to limit discovery if “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” This has been used more often recently to great effect, and the proposed amendment to move this proportionality limitation at 26(b)(2)(c)(iii) into 26(b)(1) is intended to further this trend. An additional related amendment to Rule 37(e) regarding discovery sanctions would ease preservation requirements by allowing a party to make and defend preservation decisions based upon the proportional benefit of the information and the burden that preserving and producing it would require.
Proposed changes to Rule 37(e) add more protections against sanctions by allowing them only if the party’s actions in failing to preserve or produce documents was “willful or in bad faith” and “caused substantial prejudice in the litigation.” This is intended to prevent parties who adopt “reasonable and proportionate preservation measures” from sanctions. This amendment is also intended to make sanctions more uniform across various Circuits, which currently vary a great deal in their imposition of sanctions.
Responding to Document Requests
Boilerplate objections to requests for productions are a frequent thorn in the side of both the court and the parties. Proposed amendments to Rule 34(b)(2)(B) aims to prevent these type of non-specific objections that frequently accompany responses to document requests by requiring that parties state with specific the grounds for any objection. An accompanying amendment to Rule 34(b)(2)(C) would require any objection to “state whether any responsive materials are being withheld on the basis of that objection.”
Another proposed change to 34(b)(2)(B) would require parties to produce responsive documents, “no later than the time for inspection stated in the request or a later reasonable time stated in the response.” Because rolling productions are so common and the Committee recognizes that they have value, the amendment allows continued use of rolling productions provided a party specifies beginning and end dates for the productions and obtains agreement from the requesting party.
There are also several more amendments proposed with the intent of reducing delays in preliminary stages of litigation by shortening the timeframe in which a scheduling order must be issued and adding limitations on the scope of discovery. This includes Rules 4(m), 16(b)(2), 30, 31, 33, and 36. These proposed rule changes primarily reduce the number of interrogatories, depositions, requests for admission, and the length of time in which a scheduling order must be issued. All of these new limitations are subject to revision by the court on a case-by-case basis.
These proposed amendments could dramatically affect the way discovery is performed, and the Committee encourages you to provide any comments you have prior to the February 15, 2014 deadline.