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.