What do the proposed amended FRCP changes mean for in-house counsel?

Will the changes succeed in addressing the costs and burdens of discovery, especially electronic discovery?

In parts 1 through 5 of this series, we have summarized and described the proposed amendments to the Federal Rules of Civil Procedure (FRCP) that are intended to address electronic discovery, and to promote the early and active judicial management of cases, proportionality in discovery, and cooperation. We have discussed many of the comments that have been submitted, both in support of the proposed changes, but mostly against their adoption. Some, and maybe all, of these proposed Rules are likely to be adopted, and practitioners should be thinking now about what changes the new Rules will bring about. What will you do differently? How will this change your practice — if you typically represent plaintiffs, or individuals, or whether you typically represent defendants and large organizations?

All litigants should front-load their discovery plan

Insist on specific objections

“Vague, overly broad, burdensome, and not calculated to lead to the discovery of admissible evidence” is going to be a non-starter, for two important reasons. First, objections to Rule 34 requests to produce must be specific. Courts have already, even without this provision, ruled that boilerplate objections have no effect. Second, with a more restricted scope, discovery requests are objection-worthy on the basis that they do not relate to the party’s claims or defenses. Sadly, one results of the requirement of specific objections will be to keep objectors honest and eliminate the lazy practice of lodging boilerplate objections.

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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Contributing Author

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Peter Coons

Peter Coons is senior vice president, Strategic Initatives for D4, LLC.

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