Significant Changes Coming to the Federal Rules of Civil Procedure
This month, the Committee on Rules of Practice and Procedure (the Committee) of the Judicial Conference of the United States approved significant amendments to the Federal Rules of Civil Procedure (the Rules). If adopted, these amendments would significantly alter the proportionality of discovery, the expediency of litigation and the burden imposed by ESI preservation requirements. It is important that you and your counsel be familiar with the amendments pending approval by the Supreme Court and Congress, as they are set to become effective December 1, 2015.
The proposed amendments to the Rules include significant changes to Rule 26 that would emphasize the requirement that discovery be proportional to the needs of the case in an effort to limit the scope of discovery in most cases.
With respect to proportionality, the proposed amendments relocate the factors prescribed by Rule 26(b)(2(c)(iii) directly within the first sentence of Rule 26(b)(1), which would read as follows:
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, 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."
As they now exist, the Rules suggest that proportionality is discretionary. The proposed amendments make clear that proportionality is required, and provides a legitimate basis for objecting to the scope of discovery. To put it bluntly, we are excited about the opportunity this proposed amendment will present for our clients facing litigation. Indeed, we have already heard from members of the judiciary that they are looking to parties to raise the issue of proportionality as soon as the proposed rules are adopted so as to begin in earnest the process of reducing the expense associated with overbroad discovery.
Additionally, with respect to limiting the scope of discovery, the proposed amendments delete the sentence in Rule 26(b)(1) that reads: “Relevant information need not be admissible at the trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence.” It is an understatement that this proposal is significant. Counsel have long argued, and some courts have agreed, that this sentence permits the discovery of any material “reasonably calculated” to lead to the discovery of admissible evidence. With this understanding, discovery has long been overbroad when, as the Committee explained, the original purpose of the sentence was to affirm that discovery was not limited exclusively to admissible evidence. Thus the proposed amendments will reaffirm this purpose by replacing the foregoing with: “Information within the scope of discovery need not be admissible in evidence to be discoverable.”
Expediency of Litigation
In addition to seeking more proportionate discovery, the proposed amendments to the Rules also seek to further the expediency of litigation. Principally, this would be done through amendments to Rules 4, 16, 26 and 34.
The proposed amendments affect the timing of the service of a Complaint and Summons and the timing of the required Scheduling Conference. Amended Rule 4 would require that a Complaint and Summons be served within 90 days (reduced from 120 days in the present rule). Additionally, Rule 16 would be amended to require that a Scheduling Conference be held at the earlier of 90 days after any defendant has been served (reduced from 120 days in the present rule) or 60 days after any defendant has appeared (reduced from 90 days in the present rule). The Committee noted that the goal of both proposed amendments is to “get cases moving more quickly and shorten the overall length of litigation” as well as to encourage the early involvement of the court in an effort to encourage the early resolution of litigation.
The Committee also proposed amendments to Rule 34 which should serve to increase the expediency of litigation by requiring more specific discovery responses as well as more specific objections to discovery requests. The Committee disallowed the use of “broad, boilerplate objections that provide little information about the true reason a party is objecting; responses that state various objections, produce some information and do no indicate whether anything else has been withhold from discovery on the basis of the objections; and responses which state that responsive documents will be produced in due course, without providing any indication of when production will occur and which often are followed by long delays in production.” Under amended Rule 34, objections would be required to be stated “with specificity” and would further be required to state whether any responsive materials have actually been withheld pursuant to an objection. Additionally, discovery responses would need to “specify a reasonable time for the production of documents” when a document production does not accompany responses to document production requests.
The Committee has also proposed an amendment to Rule 26(d)(2) seemingly allowing for the issuance of early document production requests. Currently, document production requests cannot be issued until after the initial hearing required by Rule 26(f). Under amended Rule 26(d)(2), a party may deliver a Rule 34 document production request before the Rule 26(f) meeting between the parties occurs. While the Committee suggests this amendment will allow plaintiffs to provide advance notice of what should be discussed by the parties at the Rule 26(f) meeting, we suspect plaintiffs will use this opportunity as a scare tactic in an effort to bully parties into settling meritless cases. Importantly, for the purposes of determining the date to respond, the request will be treated as having been served at the first Rule 26(f) meeting. Thus, responses to document production requests will not be required any earlier than the current rule permits.
ESI Preservation Requirements
At the outset, the Committee acknowledged the blight from which many of our clients suffer – that millions can be spent on the preservation of electronically stored information (ESI) to avoid the unpredictable sanctions (including default judgment) that follows from the inadvertent or accidental destruction of data potentially relevant to potential litigation. The Committee proposed amendments to Rule 37 in order to resolve the conflicting way in which various jurisdictions treat ESI spoliation. First, the amendments provide that the court, “upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.” Second, and importantly, amended Rule 37 provides that “upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation,” the court may “presume that the information lost was unfavorable to the party;” “instruct the jury that it may or must presume the information was unfavorable to the party;” or “dismiss the action or enter a default judgment.” The proposed amendments will prevent parties from being held responsible for the loss of ESI where such loss was caused by mere negligence as opposed to having been intentionally destroyed or lost.
As the proposed amendments make their way through the final steps of approval, first by the Supreme Court and then by Congress, we will continue to track any additional changes made to the amendments. In the coming months, we’re also planning to provide more detailed perspectives of the proposed amendments, focusing specifically on the three areas discussed above. In the meantime, the Memorandum of the Committee is available here.
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|Stanley E. Woodward Jr.