Litigation: Are the proposed FRCP amendments too little, too much or just right?

Based on a review of the comments, the slate of proposed adopted rules currently on the table will face an uphill battle

Overview

Amending the Federal Rules of Civil Procedure is both a major undertaking and a major event. Since they were first promulgated in 1938, they have been amended only a handful of times. In 1966, they were amended to unify civil and admiralty procedure; in 2007, they were rewritten to achieve greater ease of understanding; and in 2009, substantial changes were made to timing requirements and the calculation of deadlines.

Reflecting the sea change occasioned by the advent of technology, the Rules were amended in 2006 to address aspects of electronic discovery. Experience under those amendments has been varied and controversial. Now, just seven years later, additional amendments that address e-discovery have been proposed.

On June 3, 2013, the Standing Committee on Rules of Practice and Procedure of the United States Courts met and approved publishing for public comment proposed amendments to certain Federal Rules of Civil Procedure — primarily, but not exclusively, rules on discovery. The package submitted for publication for public comments is known as the Duke Civil Litigation Conference Rules Package, because most of the recommended changes emerged from a conference of lawyers and judges held at Duke University in 2010. On Aug. 15, 2013, a six month comment period began. That period closes on Feb. 15, 2014. If the rules are approved by the Standing Committee, they will then be submitted to the Judicial Conference with a recommendation for approval. If the Conference approves the rules, they are then submitted for approval to the United States Supreme Court and ultimately to Congress and take effect on or after Dec. 2, 2014.

Following the implementation of the 2006 amendments, concerns about inconsistent case law and costs that continued to spiral out of control led to calls for further changes. In 2009, the American College of Trial Lawyers Task Force on Discovery issued a report which concluded that the discovery system was “broken” and that electronic discovery is a “nightmare” and a “morass” with the result that “[t]he bigger the case, the more the abuse and the bigger the nightmare.” Lawyers complain that the rules are used to leverage a settlement, rather than achieving a just result to a dispute, and that discovery has become virtually limitless. There has also been a concern that judges do way too little to control discovery, in particular, e-discovery.

The proposed amendments reflect three strong themes, themes that also came out of the Duke conference: Early and active judicial case management, proportionality, and increased cooperation. In addition to groupings of changes that reflect those themes, separate changes and re-vamping were proposed to Rule 37(e), relating to sanctions for the failure to preserve discoverable information. The amendments reflect three years of drafting, deliberation and editing. Strong opinions, both pro and con, have been expressed about the proposed changes and the effect they may have. These opinions have been given voice in the comments that have been filed. Some commenters assert that the changes uniformly favor defendants and large corporations; other commenters maintain that the changes are fair and will level the discovery playing field which, they say, currently favors individuals and plaintiffs.

This set of articles will address the proposed amendments in five additional parts: Rules Addressing Early and Active Judicial Case Management; Rules Addressing Proportionality; Rules Addressing Cooperation; Rule 37(e); and How the Rules Will Change Your Practice.

Review of comments

We have reviewed all of the comments that have been submitted to date. Of 341 comments submitted, the vast majority — 294 — oppose the changes. 18 favor the changes outright, 16 have mixed reactions, and a number of the submissions are articles or other documents that do not argue for or against the changes but merely discuss them.

Of those commenters who oppose the changes, most represent plaintiffs in either employment cases, where the defendants are most often large corporations, or civil rights cases, in which the defendants are generally government entities. Almost all of those opposed to the proposed amendments expressed strong disapproval to the proposed limits on depositions, interrogatories, requests for production and requests for admission, arguing that the law as it currently exists already limits the discovery they feel they need to take, and that further limits would be untenable. A smaller — but no less vociferous — group articulated opposition to the proposed “proportionality” language that would appear in Rule 26, as well as the deletion of the “reasonably calculated” language, on the ground that it impermissibly shifts to the plaintiff the burden of establishing entitlement to the desired discovery. Opposition was also voiced regarding proposed Rule 37(e), which would limit sanctions or adverse inference instructions for the failure to preserve relevant electronically stored information to situations in which the producing party’s actions caused substantial prejudice and were willful or in bad faith, or irreparably deprived a party of any meaningful opportunity to present or defend against claims in the litigation.

Stay tuned

It is difficult to predict what a final set of adopted rules will look like. However, based on a review of the comments, the slate that is currently on the table will face an uphill battle. The remaining articles in this series will summarize the proposed changes and will outline possible advantages and disadvantages the changes will afford to litigators of all types.

Contributing Author

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Cynthia Courtney

Cynthia Courtney is the current assistant attorney general for the state of Connecticut. She was formerly vice president discovery engineering and general counsel at D4....

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