You have probably heard the news. Changes are in the works for the Federal Rules of Civil Procedure that govern the discovery process. To date, most of the discussion on the proposed amendments has focused on the revised standard of culpability required to impose sanctions for failures to preserve relevant information under the draft amendment to Rule 37(e). While such attention is understandable given the far-reaching impact that such changes could have on organizations’ defensible deletion efforts, there are actually several other proposed amendments worth taking note of.
The overall thrust of the other amendments is to facilitate the tripartite aims of Federal Rule 1 in the discovery process. To carry out Rule 1’s lofty yet important mandate of securing “the just, speedy, and inexpensive determination” of litigation, the Civil Rules Advisory Committee has proposed several changes to advance the notions of cooperation and proportionality. As conceived, these amendments could make civil discovery in federal court more efficient and cost-effective, thereby allowing matters to be litigated on the merits instead of in costly satellite litigation. The draft amendments that touch on cooperation and proportionality are each considered in turn.
To better emphasize the need for cooperative advocacy in discovery, the committee has recommended that Rule 1 be amended to specify that litigants share the responsibility with the court for achieving the rule’s objectives. The proposed revisions to the rule (in italics with deletions in strikethrough) read in pertinent part as follows:
[These rules] should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.
Even though this concept is already found in the Advisory Committee Notes to Rule 1, the committee felt that an express reference in the rule itself would prompt litigants and their lawyers to engage in more cooperative conduct. Perhaps more importantly, this mandate should also enable judges “to elicit better cooperation when the lawyers and parties fall short.” Indeed, such a reference, when coupled with the “stop and think” certification requirement from Federal Rule 26(g), should give jurists more than enough procedural basis to remind counsel and clients of their duty to conduct discovery in a cooperative and cost-effective manner.
Proportionality—Rules 26, 30, 31, 33, 34, 36
The logical corollary to cooperation in discovery is proportionality. Proportionality standards, which require that the benefits of discovery be commensurate with its burdens, have been extant in the Federal Rules since 1983. Nevertheless, they have been invoked too infrequently over the past 30 years to address the problems of over-discovery and gamesmanship that permeate the discovery process. In an effort to spotlight this “highly valued” yet “missing in action” doctrine, the committee has proposed numerous changes to the current rules regime. The most significant changes are found in Rules 26(b)(1) and 34(b).
Rule 26(b)(1)—Tightening the scope of permissible discovery
The committee has proposed that the permissible scope of discovery under Rule 26(b)(1) be modified to spotlight the limitations that proportionality imposes on discovery. Those limitations are presently found in Rule 26(b)(2)(C) and are not readily apparent to many lawyers or judges. The proposed modification (in italics) would address this problem by making clear that discovery must satisfy proportionality standards:
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 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.
By moving the proportionality rule directly into the scope of discovery, counsel and the courts should gain a better understanding of the restraints that this concept places on discovery.
Rule 26(b)(1) has additionally been modified to enforce the notion that discovery is confined to those matters that are relevant to the claims or defenses at issue in a particular case. Even though discovery has been limited in this regard for many years, the committee felt that this limitation was being “swallowed” by the “reasonably calculated” provision in Rule 26(b)(1). That provision currently provides for the discovery of relevant evidence that is inadmissible so long as it is “reasonably calculated to lead to the discovery of admissible evidence.”
Despite the narrow purpose of this provision, the committee found that many judges and lawyers unwittingly extrapolated the “reasonably calculated” wording to broaden discovery beyond the benchmark of relevance. To disabuse courts and counsel of this practice, the “reasonably calculated” phrase has been removed and replaced with the following sentence: “Information within this scope of discovery need not be admissible in evidence to be discoverable.”
Similarly, the committee has recommended eliminating the provision in Rule 26(b)(1) that presently allows the court – on a showing of good cause – to order “discovery of any matter relevant to the subject matter.” In its proposed “Committee Note,” the committee justified this suggested change by reiterating its mantra about the proper scope of discovery: “Proportional discovery relevant to any party’s claim or defense suffices.”
Rule 34(b)—Eliminating gamesmanship with document productions
The three key modifications the committee has proposed for Rule 34 are designed to eliminate some of the gamesmanship associated with written discovery responses. The first such change is a requirement in Rule 34(b)(2)(B) that any objection made in response to a document request must be stated with specificity. This recommended change is supposed to do away with the assertion of general objections. While such objections have almost universally been rejected in federal discovery practice, they still appear in Rule 34 responses. By including an explicit requirement for specific objections and coupling it with the threat of sanctions for non-compliance under Rule 26(g), the committee may finally eradicate this practice from discovery.
The second change is calculated to address another long-standing discovery dodge: making a party’s response “subject to” a particular set of objections. Whether such objections are specific or general, the committee concluded that such a conditional response leaves the party who requested the materials unsure as to whether anything was withheld and if so, on what grounds. To remedy this practice, the committee added the following provision to Rule 34(b)(2)(C): “An objection must state whether any responsive materials are being withheld on the basis of that objection.” If enforced, such a requirement could make Rule 34 responses more straightforward and less evasive.
The third change is intended to clarify the uncertainty surrounding the responding party’s timeframe for producing documents. As it now stands, Rule 34 does not expressly mandate when the responding party must complete its production of documents. That omission has led to open-ended productions, which can unreasonably lengthen the discovery process and increase litigation expenses. To correct this oversight, the committee proposed that the responding party complete its production “no later than the time for inspection stated in the request or [at] a later reasonable time stated in the response.” For so-called “rolling productions,” the responding party “should specify the beginning and end dates of the production.” Id. Such a provision should ultimately provide greater clarity and increased understanding surrounding productions of ESI.
Other changes—Cost shifting in Rule 26(c), reductions in discovery under Rules 30, 31, 33, 36
There were several additional changes the committee recommended that are grounded in the concept of proportionality. While space does not allow for a detailed review of all of these changes, practitioners should take note of the new cost-shifting provision in Rule 26(c). That change would expressly enable courts to allocate the expenses of discovery among the parties.
The committee has also suggested reductions in the number of depositions, interrogatories and requests for admission. Under the draft amendments, the number of depositions is reduced from 10 to five. Oral deposition time has also been cut from seven hours to six. As for written discovery, the number of interrogatories would decrease from 25 to 15 and a numerical limit of 25 has been introduced for requests for admission. That limit of 25, however, does not apply to requests that seek to ascertain the genuineness of a particular document.
The impact of these “other” proposed amendments to the Federal Rules could ultimately be as extensive as those affecting preservation standards under Rule 37(e). By emphasizing cooperative advocacy and by making proportionality standards the touchstone of federal discovery, the amendments suggest that discovery will be conducted with laser-like precision instead of the sledgehammer approach of the current regime. If implemented and enforced as contemplated, the proposed rules amendments could go a long way toward decreasing the costs and delays associated with discovery.