Commenting on the comments to the proposed amendments to the Federal Rules of Civil Procedure

All sides believe that the rules proposals do not do enough to achieve the just, speedy and inexpensive administration of justice, but that sets the stage for disagreement

In an earlier article, I reviewed the comments on the proposed amendments to the Federal Rules of Civil Procedure that were submitted by the New York State Bar Association’s Commercial and Federal Litigation Section. With the comment period for the proposed amendments coming to a close, let’s take a bird’s eye view at the hundreds of comments to see what people interested in the issues are saying. The proposed amendments address a variety of procedural mechanisms, but the comments all come down to one divisive issue — the impact of electronic discovery and what to do about it. While some of the positions taken may be fairly predictable given their proponents, some very interesting facts have been reported that may be surprising, horrifying or educational depending on your point of view.

At the time this article was being drafted, 388 comments on the proposed amendments had been filed. The first comments were filed on the first day the proposed amendments were published for public comment and the last in time for this article on the day the article was drafted. The commenters ranged the gamut from solo practitioners, law schools, industry associations, corporations, bar associations, special interest groups and everything in between or among this cornucopia.

Lawyers representing individuals against larger organizations have expressed major concerns with the presumptive limits on discovery that would be imposed under the proposed amendments. For example, The Public Justice Center, “representatives of low-wage workers and civil rights litigants,” believes that the presumptive limits on discovery “will operate to tip the scales against employment and civil rights plaintiffs.” Public Justice, P.C., which “represents individuals in a wide variety of cases against corporations,” agrees that the presumptive limits “will predictably jeopardize the effectiveness of discovery in assuring fact-based decision-making in far too many cases, with little benefit in efficiency.”

These groups, like the American Association of Justice (formerly Association of Trial Lawyers of America),  urge that “[s]maller cases should not be limited by large discovery costs in large cases” and that the presumptive limits “will only lead to increased collateral litigation over whether additional discovery should be allowed and whether the presumptive limits are violated through parts and subparts…” Similar sentiments were expressed by groups such as the American Association for Justice’s Class Action Litigation Group, and the Alliance for Justice.

On the other side of the pendulum are organizations representing large corporations, such as the Lawyers for Civil Justice and the Federation of Defense and Corporate Counsel. They argue that the proposed amendments do not go far enough in curtailing the cost of discovery in a world where “[e]-discovery is being abused and the costs and burdens associated with e-discovery are simply too high.” Many of these groups commented not only in favor of presumptive limits, but also that the proposed amendments do not go far enough in limiting consequences for preservation failures.

Certain corporations provided comments directly (as opposed to or in addition to doing so via an advocacy group such as those mentioned above). These companies provided quantitative evidence for their statements that the burdens of e-discovery are too high. For example, one large pharmaceutical company described an “illustrative” litigation: “…for eight years, [the company] preserved an extraordinary 1.2 million back-up tapes” at a cost of “nearly $40 million.” In that case, about 400 of the company’s documents were actually marked at the trial and “for every one document used at trial, approximately 625,000 additional documents were produced.” The company described another case where it was forced to perform redactions on 5.5 million pages.

Another major pharmaceutical company also provided some facts in support of arguments that the rules should provide additional protection for parties required to preserve data. The company describes a case where it received a letter threatening suit and “immediately issued a litigation hold notice and disabled computer auto-delete features for employees who might have relevant information.” Almost a year later, the company was still holding electronic information for 382 employees even though no lawsuit has materialized.

A review of the many comments filed in response to the proposed amendments to the Federal Rules of Civil Procedure starkly demonstrates that there is a lot at stake and that the proposed amendments are not merely slight tweaks to civil procedure of concern only to lawyers. Generally, the commenters seem to agree that the proposed amendments have the potential to radically impact the legal system. At the ends of the spectrum, both sides believe that the rules proposals do not do enough to achieve the just, speedy and inexpensive administration of justice. This point of agreement, however, sets the stage for a massive divergence in opinion. Against this contentious backdrop, whether, and if so in what form, any amendments to the Federal Rules of Civil Procedure are enacted is an uncertain outcome.

The views expressed are those of the author and do not necessarily represent the views of Ernst & Young LLP.

Contributing Author

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Adam Cohen

Adam Cohen is a Principal with Ernst & Young LLP.  He is the co-author of the annually updated legal treatise “Electronic Discovery:  Law and Practice”,...

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