Orrick Submits Comments to Civil Rules Advisory Committee Regarding the Proposed Amendments to the Federal Rules of Civil Procedure

On February 12, Orrick submitted written comments regarding proposed amendments to the Federal Rules of Civil Procedure ("FRCP") intended to facilitate more meaningful discovery efforts and to reduce cost and delay in litigation. The proposed rule amendments are the result of extensive work by the Rules Committee. The Committee sought commentary on all proposed revisions through a formal commentary period running from August 15, 2013 to February 15, 2014 (the proposed amendments can be found here). The majority of comments submitted to date--more than 600--have come from the Plaintiffs' bar. Orrick now joins a handful of companies and defense-based groups including Pfizer, Ford, Bayer, MetLife, Hewlett-Packard, Lawyers for Civil Justice, DRI, and the Federation of Defense and Corporate Counsel that have submitted comments.

Our comments focus on:

  1. the impact of rules requiring an informal conference with the court before discovery motions may be filed (proposed Rule 16);
  2. the benefits of presumptive limits on requests for production of documents (proposed Rule 34); and
  3. the importance of a bad faith determination before courts may consider issuing discovery sanctions (proposed Rule 37). For additional background on the proposed rules, please see our August 27, 2013 client alert.

Each comment is supported by empirical data assembled by our eDiscovery and Information Governance Group. Leveraging our knowledge of local rules and jurisdictional practices, we compared the volume of discovery motions filed in courts with pre-motion conference requirements against the number of motions filed in courts without such requirements. We also assembled and contrasted total hours spent on document processing, searching and review in cases with and without presumptive discovery limits such as those suggested in the Federal Circuit's Model Order Regarding E-Discovery in Patent Cases. Lastly, we compared the frequency that discovery sanctions were issued in courts requiring a showing of “bad faith” to the frequency of sanctions in courts that do not employ a “bad faith” standard.