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Proposed Amendments to the Federal Rules of Civil ProcedureSeptember 26, 2013
Last month, the Judicial Conference’s Committee on Rules of Practice and Procedure released a preliminary draft of proposed amendments to the Federal Rules of Civil Procedure that would implement major changes to the amount of discovery presumptively allotted in civil suits. The Committee named three goals it sought to advance in its proposal: (1) proportionality in discovery; (2) cooperation among lawyers; and (3) early and active judicial case management.
SUMMARY OF PROPOSED CHANGES
Most importantly, the proposed amendments would:
- Narrow the scope of discovery under Rule 26(b)(1) by: (1) adding the requirement that discovery be “proportional to the needs of the case” in light of several specified considerations, and (2) limiting discovery to matters that are “relevant to any party’s claim or defense” and eliminating language in Rule 26 that allows a Court, “with good cause” to order discovery relevant to the “subject matter of the action.” The changes also eliminate the concept that discovery need not be admissible but simply reasonably calculated to lead to the discovery of admissible evidence;
- Reduce the presumptive limit on the number of depositions from 10 to five, and reduce the presumptive duration from one day of seven hours to one day of six hours;
- Reduce the presumptive number of Rule 33 interrogatories to 15;
- Add a presumptive limit of 25 requests for admission, excluding requests to admit the genuineness of documents;
- Require more specificity in objections to discovery requests;
- Implement a unified, and more forgiving standard for awarding discovery sanctions under Rule 37(e);
- Allow a party to serve Requests for Production starting from 21 days after the summons and complaint are served, even before the Rule 26(f) conference;
- Shorten the time between filing a complaint and the issuance of a scheduling order; and
- Permit scheduling orders to direct that a party must request a conference with the court before filing any discovery motions.
The rules amendment process is overseen by the Judicial Conference, the principal policy-making body of the U.S. Courts, pursuant to the Rules Enabling Act. The Judicial Conference’s Committee on Rules of Practice and Procedure, (“Standing Committee”) and its five advisory rules committees evaluate proposals for rules amendments in the first instance. If they decide to pursue a proposal, they will publish a draft amendment and garner comments from the public.
Public comments on the proposed amendments described above are due in February of 2014. Interested parties may submit comments online by clicking here. After comments are received, a summary will be prepared and the Advisory Committee will take a fresh look at the proposed changes in light of the public reaction. If the Advisory Committee substantially changes its proposal, it may provide a second period for public commentary. Otherwise, it will submit a finalized proposal to the Standing Committee for approval.
The Standing Committee may accept, reject, or modify the proposed amendments. If the Standing Committee makes a substantial modification, it will normally return the proposal to the Advisory Committee with instructions. If it accepts the proposal, it will submit the draft amendments to the Judicial Conference with a recommendation for approval.
The Judicial Conference will consider the amendments in its September session. If it approves of the proposed amendments, it will submit them to the Supreme Court.
The Supreme Court has until May 1 of the year in which the amendments are to take effect to submit them to Congress. Once Congress receives the proposal, it has seven months to approve or reject the new rules. If it does not take any action, the rules take effect as a matter of law on December 1 of that year.
DETAILED DESCRIPTION OF PROPOSED CHANGES
Amendments Relating to Proportionality in Discovery
The proposed amendments relating to proportionality are aimed at cutting down on excessive discovery by limiting both the scope of permissible discovery, and the number of requests and depositions allotted to each party as of right.
Rule 26(b)(1) (Scope of Discovery): Language would be added to Rule 26(b)(1) requiring that discovery be proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, 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.
Rule 26(b)(2)(C)(iii), which imposes a duty on the court to limit discovery, would cross-refer to this standard.
The scope of discovery under Rule 26(b)(1) would be further limited by changing the proper subject of party-controlled discovery from “any matter relevant to the subject matter involved in the action” to “matter that is relevant to any party’s claim or defense,” as they appear in the pleadings.
Additionally, the proposal would eliminate the “reasonably calculated” standard in the current rule’s provision that “relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” FED. R. CIV. P. 26(b)(1). The new rule would replace this language with the statement: “Information within this scope of discovery need not be admissible in evidence to be ‘discoverable.’”
Rule 26(c)(1)(B) (Protective Orders): Language would be added to Rule 26(c)(1)(B) explicitly acknowledging that protective orders may include terms allocating the expenses of discovery among the parties.
Rules 30 and 31 (Depositions): The proposal would reduce the number of depositions a party may take without leave of court from 10 to 5 under Rules 30 and 31, governing oral and written depositions, respectively. It would also reduce the presumptive duration of a deposition from 1 day of 7 hours to 1 day of 6 hours.
Rule 33 (Interrogatories): Rule 33 would be amended to reduce the number of interrogatories a party may serve at one time without leave of court from 25 to 15.
Rule 34 (Requests for Production): Rule 34(b)(2)(B) and (C) would include new language requiring parties to state with specificity the grounds for objecting to any request for production, and to “state whether any responsive materials are being withheld on the basis of that objection.” The Committee Note explains that “[a]n objection that states the limits that have controlled the search for responsive and relevant materials”—such as “a statement that the search was limited to materials created during a defined period, or maintained by identified sources”— “qualifies as a statement that the materials have been ‘withheld.’”
New language concerning actual production would be added to Rule 34(b)(2)(B) in order to address the common practice of producing copies of materials rather than permitting inspection of originals. The new provision directs that a responding party “may state that it will produce copies of documents or of electronically stored information instead of permitting inspection,” and in that case, the production “must then be completed no later than the time for inspections stated in the request or a later reasonable time stated in the response.” The Committee Note acknowledges the propriety of “rolling productions” by providing that “[w]hen it is necessary to make the production in stages the response should specify the beginning and end dates of the production.”
Amendment Relating to Cooperation Among Parties
Rule 1 (Scope and Purpose of the FRCP): A modest proposed amendment to Rule 1 would provide: “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.” The Committee Note explains that the amendment is intended “to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way.”
Amendments Relating to Case Management
The Committee’s proposal seeks to speed up the timeline in the early stages of litigation. Most directly, the case management amendments would reduce the time to serve the summons and complaint, and allow discovery to be served even before the initial Rule 26(f) conference.
Rule 4(m) (Summons): Rule 4 requires parties to prepare a summons with their complaint and serve the summons on all defendants in an action. Plaintiffs currently have 120 days from the time they file a complaint to serve the complaint and summons on defendants. The proposed amendment would reduce the time for service by half, to 60 days from the date a complaint is filed.
Rule 16(b) (Scheduling Orders): The Conference’s proposal would affect several changes to Rule 16(b), which governs the issuance of scheduling orders.
Rule 16(b)(2) now requires a judge to issue a scheduling order within the earlier of 120 days after any defendant has been served or 90 days after any defendant has appeared. The proposed amendment would reduce this time to 90 days after any defendant is served or 60 days after any defendant appears. The Committee Note accompanying the amendment would provide that extensions should be liberally granted for the sake of better overall efficiency.
The proposal would add to the “permitted contents” of a scheduling order under Rule 16(b)(3). The new rule would allow a scheduling order to provide for the preservation of electronically stored information and to include agreements reached under Rule 502 of the Federal Rules of Evidence, which deals with privilege waivers, and it would add a new section, numbered 16(b)(3)(v), permitting a scheduling order to “direct that before moving for an order relating to discovery the movant must request a conference with the court.”
The proposal would also eliminate language from Rule 16(b)(1)(B) that allows scheduling conferences to be held “by telephone, mail, or other means.” The Committee Note would clarify that conferences may be held face-to-face, by telephone, or by other means of simultaneous communication only.
Rule 26(d)(2) (Timing of Requests for Production): A new section would be added to Rule 26, numbered 26(d)(2), allowing parties to serve Rule 34 requests for production earlier—21 days after the complaint and summons are served, and before the parties’ Rule 26(f) conference. Currently, parties may not serve discovery requests until after the initial conference, and the receiving party has 30 days to respond.
Parties will still have 30 days to respond to requests under the new rule, and a request made before the Rule 26(f) conference would not be considered “served” for purposes of triggering the 30-day deadline until the Rule 26(f) conference is held.
Amendments to Rule 37 Discovery Sanctions
The Conference’s proposal would also include significant amendments to Rule 37(e) governing the award of discovery sanctions for the failure to preserve discoverable information. A central objective of the proposed new Rule is to adopt a uniform standard to be applied across all circuits. By affirmatively providing for sanctions for the failure to preserve, the new rule would preempt any arguments that such sanctions should be awarded based on a court’s inherent power, and would eliminate the need to prove that such failure violated a court order. Additionally, the rule would apply to all discoverable information, not just electronically stored information as in the current rule.
The new rule would allow sanctions only upon a finding that a party’s failure to preserve was “willful or in bad faith” and that it “caused substantial prejudice in the litigation.” Exception is made in proposed Rule 37(e)(1)(B), which authorizes an award of sanctions in the absence of bad faith where the failure to preserve “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.”
Proposed Rule 37(e)(2) explicitly lists factors to be considered in assessing a party’s conduct. These include:
- the extent to which the party was on notice that litigation was likely and that the information would be discoverable;
- the reasonableness of the party’s efforts to preserve the information;
- whether the party received a request to preserve information, and whether the request was clear and reasonable;
- whether the person who made it and the party consulted in good faith about the scope of preservation;
- the proportionality of the preservation efforts to any anticipated or ongoing litigation; and
- whether the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information.
Proposed Rule 37(e)(1) and the accompanying Committee Note also provide examples of “curative measures” that a court may impose instead of sanctions. These include: permitting additional discovery; requiring the party that failed to preserve to restore or obtain the lost information, or to develop substitute information that the court otherwise would not have ordered the party to create; and ordering the party who failed to preserve to pay the reasonable expenses, including attorney’s fees, caused by the failure.
 A corresponding addition would be made in Rule 37(a)(3)(B)(iv), granting authority to move for an order to compel production if a party fails to produce documents.
 This change would also be reflected in the amendments to Rule 26(f), which provides the topics required to be discussed at the initial scheduling conference.
 A corresponding change would be made in Rule 34(b)(2)(A) setting the time to respond to a request to 30 days after the parties’ first Rule 26(f) conference.
This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. James Bo Pearl, an O'Melveny partner licensed to practice law in California, and Ashley Pearson, an O'Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.
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