Get Involved: Opportunity to Reduce the Costs and Burdens of Discovery Through FRCP Amendments

by Brownstein Hyatt Farber Schreck

Phoenix Hearing in January 2014 Will Focus on Proposed Amendments to the Federal Rules of Civil Procedure Aimed at Reducing the Costs and Burdens of Discovery

Your organization has an opportunity to support reform during a public hearing on January 9, 2014

If your organization is involved in litigation, or is concerned about the obligation to preserve information for potential litigation, you could be affected by the proposed amendments to the Federal Rules of Civil Procedure (FRCP) that have recently been published for public comment.

The Advisory Committee on Civil Rules (“Advisory Committee”) is holding a public hearing in Phoenix, Arizona on January 9, 2014, to consider a number of proposals to amend the FRCP aimed at reducing the costs and burdens of discovery.  The two most important of these are a re-write of Rule 37(e), which regulates sanctions for failure to preserve discoverable information, and a revision to Rule 26(b)(1) which re-defines the scope of discovery.  The proposed amendments also include changes to rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37. 

It is important for those who support reform to submit a request to testify in the form of a letter to the Advisory Committee 30 days in advance of the hearing (postmarked by December 9, 2013).  Many opponents will argue against the proposed rule changes and defend the status quo.  This public hearing is one of few opportunities you have to  balance those voices with your support and to make any suggestions for revision. 

Here are some key points about the proposed amendments:

Rule 37(e)
The proposed new Rule 37(e) would prohibit sanctions for failure to preserve discoverable information unless the failure was “willful or in bad faith” and causes “substantial prejudice.”  This proposal holds great promise to establish a much-needed uniform national standard that would curtail costly over-preservation and ancillary litigation over allegations of spoliation. The proposed rule differs substantially from the current Rule 37(e), which purports to bar sanctions only where electronically stored information (ESI) is lost due to the good faith operation of an electronic information system.  The new proposed rule is not limited to ESI.

Unfortunately, an exception contained in subsection (1)(B)(ii) of the draft could “swallow the rule” by allowing courts to impose sanctions absent any willfulness or bad faith where the loss of information “irreparably deprives” a party of any ability to present or defend the action.  Although the Advisory Committee intends for the exception to apply in only in the very rarest of situations, there is concern that courts would use the exception to avoid the primary rule.  For this reason, the Advisory Committee could make new Rule 37(e) more effective by omitting subsection (1)(B)(ii).

Rule 26(b)(1) 
The Advisory Committee’s proposed amendment to Rule 26(b)(1) would re-define the scope of discovery to be “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case….”  The amendment deletes the well-known but overbroad phrase “reasonably calculated to lead to the discovery of admissible evidence,” as well as the “subject matter involved in the action” from the scope of discovery in order to make clear that discovery is defined by the claims and defenses identified in the pleadings.  This change would provide a meaningful improvement compared to the current standard, which is a fundamental cause of the high costs and burdens of modern discovery.

Other Rules
The other proposed FRCP amendments include changes to the presumptive numerical limits in several discovery categories (reducing the number of Rule 33 interrogatories from 25 to 15, the number of depositions from 10 per party to 5 and the presumptive duration of a deposition from 7 hours to 6, and adopting a presumptive limit of 25 for Rule 36 requests to admit).  Another proposal would amend Rule 1 to encourage parties to cooperate.  The entire package of proposals is available here

How to Sign Up
You can sign up to speak at the public hearing in Phoenix, Arizona on January 9, 2014, by sending a letter requesting to testify to the following address by US MAIL, 30 DAYS IN ADVANCE OF THE HEARING (by December 9, 2013):

Committee on Rules of Practice and Procedure
Administrative Office of the United States Courts
Suite 7-240
Washington, D.C.  20544

How to File Comments
Whether or not you testify in person, you can file a written comment letter with the Advisory Committee electronically here. The Committee is also accepting written comments by mail at the address above.

What Happens Next?
Following the close of public comment in February 2014, the Rules Committee will take a fresh look at the proposed rule changes in light of the public comments, then submit its proposed amendments, revised or not, through a committee process for approval.  If the Supreme Court approves the amendments that result from the committee process, then Congress has six months to reject, modify or defer the proposed rules.  If Congress does not act, the proposals become part of the FRCP in December 2015.   


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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