Changes to the Federal Rules of Civil Procedure are on the horizon. The proposed amendments to the Federal Rules of Civil Procedure were released for a six-month public comment period on Aug. 15, 2013, and if adopted, could have a substantial impact on your role as in-house counsel. The changes are designed to promote early case management, streamline discovery, and advance cooperation among the parties. This article outlines a few ways these changes could impact your role as an in-house attorney, and provides some tips on how to be prepared for the changes if and when they take effect.
On June 3, 2013, the Standing Committee on Rules of Practice and Procedure approved for publication a report containing proposed amendments to the Federal Rules of Civil Procedure (the “Report”). On Aug. 15, 2013, the Report was released to the bench and bar for a six month public comment period, which includes a series of public hearings held in Washington, D.C., Phoenix and Dallas. The public comment period closes on Feb. 15, 2013.
If approved by the Standing Committee, the proposed amendments will be submitted to the Judicial Conference with a recommendation for approval, who in turn submits the proposals to the Supreme Court. If approved by the Supreme Court, Congress has seven months to approve or reject the new rules. The revised rules would be officially promulgated on or before May 1, 2014, and take effect on or after Dec. 1, 2014.
The Report contains a comprehensive proposal to amend Rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37. The proposed amendments are the result of nearly three years of committee work, which involved two initiatives – the first initiative arose from the May 2010 Duke University conference which focused on reducing cost and delay in civil litigation; the second initiative arose from the Advisory Committee’s Discovery Subcommittee, which proposed revisions to Rule 37(e) to modify the use of sanctions for e-discovery violations.
If adopted, the amendments become effective as of Dec. 1, 2015, and could change your practice as in-house counsel in many ways.
Be prepared to hit the ground running
Many of the proposed amendments share the common goal of early case management. This means that cases will move at an accelerated speed from the moment the complaint is filed. For example:
- Proposed Amendment to Rule 4(m) reduces the time for service of the summons and complaint from 120 to 60 days;
- Proposed Amendment to Rule 16(b)(2) reduces the time the judge must issue the scheduling order from 120 days to 90 days after the defendant is served; and from 90 to 60 days after any defendant enters an appearance; and
- Proposed Amendment to Rule 16(b)(1)(B) requires the judge to issue a scheduling order after consulting with the parties at the scheduling conference, which now must involve direct communication, and cannot be by “telephone, mail, or other means.”
If these proposed amendments are enacted, the preliminary stages of litigation would be essentially cut in half. This means that you will have to be prepared to advise internal stakeholders and business contacts more quickly than under the current court rules. It would become even more important for you to have access to the stakeholders in your company so that you can obtain any and all key underlying documents in a case (such as an insurance policy, indemnity agreement, warranty); develop background information regarding key facts to support claims or defenses; and engage outside counsel to handle the case.
Be prepared to create a discovery plan early
The Report also contains several proposed amendments designed to limit the cost and scope of discovery. For example:
- The proposed amendments limit oral depositions from 10 to 5, and limit each deposition to six hours instead of seven hours (Rule 30); limit written depositions from 10 to 5 (Rule 31); limit interrogatories from 25 to 15 (Rule 33); and impose a new limit of 25 requests for admission per party where there was no previous limit (Rule 36).
- The proposed amendment to Rule 34(b) would require a party objecting to a written discovery request to state the grounds for objecting to the request “with specificity,” and requires that an objection state whether any responsive materials are being withheld on that basis. Broad and general objections will no longer be permitted.
- The proposed amendment to Rule 26(b)(1) requires that discovery be “proportional to the needs of the case considering the amount in controversy, the importance of the issues . . . the parties’ resources, the importance of the discovery in resolving the issue, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
These proposed changes could help save time and money for your company but also mean that you may need to spend more time early in litigation with outside counsel developing a detailed discovery plan. With fewer interrogatories, requests for admission and depositions, the questions asked at those depositions will become more important. The litigation team will also need to have a better understanding about the operative documents and facts and put together a strategy (including any themes or defenses) before engaging in discovery. This is especially true in light of the proposed amendments to Rule 34(b) and 26(b)(1), because outside counsel drafting discovery objections would be required to provide specific objections and note whether documents are actually being withheld. Counsel will not be able to rely on blanket objections to inevitably delay obtaining and reviewing documents. Finally, because all discovery would have to be proportional to the critical issues in the litigation, counsel must have a proper understanding of those issues before propounding any discovery.
Be prepared to revise document retention policies
Finally, the proposed amendment to Rule 37(e) would rewrite the entire rule. While the former Rule 37 focused on failure to provide electronically stored information, the proposed amendment to Rule 37 is broader and applies to a party’s failure to preserve any discoverable information, not just electronically stored information. While the information protected is broader, the proposed amendment rejects the former approach that a party may be sanctioned as a result of mere negligence, and instead requires the non-preserving party’s failure to preserve information have either caused substantial prejudice based on willful conduct or bad faith, or have irreparably deprived a party of meaningful opportunity to present or defend claims.
This proposed amendment serves to provide some clarity and uniform standards throughout all federal courts so that parties can avoid the expense of over-preservation. It does not, however, provide a “bright line” preservation directive, because the committee believes that these issues remain context-specific. Based upon these changes, be prepared to draft document retention policies and litigation holds so that they appropriate reach beyond electronically stored information.
These are just a few examples of how the proposed amendments to the Federal Rules of Civil Procedure could have a substantial impact on your practice as in-house counsel. We will continue to monitor the proposals through the comment period that closes on February 15, 2013. A full text of the Report can be found at here (PDF).