Changes to the Federal Rules of Civil Procedure designed to enhance cooperation and proportionality in discovery and to standardize sanctions rules came a step closer to fruition last week, as the Advisory Committee on Civil Rules, meeting in Norman, Okla., April 11 and 12, voted to send the proposed changes to the Standing Committee on Rules of Practice and Procedure for consideration at its meeting June 3 and 4 in Washington, D.C.
The package of proposed rules evolved out of the 2010 Duke Civil Litigation Conference, a major two-day conference sponsored by the Advisory Committee that brought together judges, lawyers and academics to explore possible solutions to the rising cost of civil litigation and discovery.
The proposals approved last week are designed to reduce cost and delay in litigation by encouraging cooperation, proportionality and early hands-on case management. They also attempt to define a uniform set of rules for judges to follow in considering sanctions for failures to preserve.
With regard to proportionality, the most significant change would be to Rule 26(b)(1), governing the scope of discovery. The proposal would amend this section to read (text in italics is new):
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
A corresponding change would be made to Rule 26(b)(2)(C)(iii) to cross-refer to (b)(1) and to make clear that the court can and should act on its own, even without a motion, to limit the frequency or extent of discovery that exceeds these limits.
Proportionality would also be addressed by amending the presumptive numerical limits in Rules 30, 31, 33 and 36.
- Currently, Rules 30 and 31 establish a presumptive limit of 10 depositions by the plaintiffs, defendants or third-party defendants. The proposals would reduce the limit on depositions to five.
- Currently, Rule 30(d)(1) establishes a presumptive time limit for the duration of an oral deposition of one day, consisting of seven hours. The proposals would reduce that to six hours.
- Rule 33(a)(1) sets a presumptive on written interrogatories of 25. The proposals would reduce that to 15.
- Currently, there are no presumptive limits for Rule 34 requests to produce or for Rule 36 requests to admit. The proposals would, for the first time, set a limit under Rule 36 of 25 requests to admit.
Three further changes proposed to address proportionality would be to Rule 34, governing objections and responses to discovery requests. First, Rule 34(b)(2)(B) would be amended to require that the grounds for objecting to a request be stated with specificity. Second, Rule 34(b)(2)(C) would require that an objection “state whether any responsive materials are being withheld on the basis of that objection.” This is to address situations where a response provides a laundry list of objections, but then produces documents, leaving the recipient unsure whether anything has been withheld.
Third, Rule 34(b)(2)(B) would be amended so that, when a party opts to produce copies of documents or ESI rather than permit inspection, it must make that production within the time for inspection stated in the discovery request or a later reasonable time specified in the response. A corresponding change to Rule 37 would permit a motion to compel when a party fails to produce documents in accordance with this provision.
Encouraging greater cooperation among litigants is also a goal of the proposed rules. To that end, the proposal calls for what is described as a “modest” addition to Rule 1:
[T]hese rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.
The Committee Note explains that this is intended to emphasize that, just as the court should construe and administer the rules to secure the just, speedy and inexpensive determination of every case, so do the parties share the responsibility to employ the rules in the same way.
The committee took this modest approach, it explained, because of the difficulty of imposing a direct duty or definition of cooperation. “It is difficult to identify a proper balance of cooperation with legitimate, even essential, adversary behavior,” it noted.
Uniform Standards for Sanctions
The proposed amendments would replace the current Rule 37(e) with new language intended to provide a uniform national standards to guide courts in evaluating what constitutes reasonable preservation and what curative measures or sanctions to employ. The new rule would apply to all forms of discoverable information, not just ESI.
A memorandum prepared for last week’s meeting summed up the key provisions of the proposed Rule 37(e):
[T]he revisions to the rule should express more clearly four basic propositions: First, curative measures should be available without any need to find fault in the failure to preserve. Second, “sanctions” should not be imposed on a party that acted reasonably even though information was nevertheless lost. Third, sanctions are proper when loss of information imposes substantial prejudice on a party and resulted from willful or bad-faith failure to preserve. And fourth, sanctions may be imposed when the loss of information completely stymies a party’s ability to litigate, but only when the failure to preserve resulted from some fault of the party on whom sanctions are imposed.
Under this proposed rule, a court would be permitted to impose sanctions for the failure to preserve only if one of two conditions is met. Either the court must find that the failure “caused substantial prejudice in the litigation and was willful or in bad faith,” or it must find that the failure “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the action and was negligent or grossly negligent.”
Early Case Management
In addition to addressing proportionality, cooperation and sanctions, a fourth component of these proposed rules are designed to advance early and effective case management. Among changes proposed here:
- Amend Rule 4(m) to reduce the presumptive time for serving the summons and complaint from 120 days to 60 days.
- Amend Rule 16(b) to reduce the time by which the judge must issue a scheduling order. The current rule requires the order within the earlier of 120 days after any defendant has been served or 90 days after any defendant has appeared. The proposed amendment changes these to 90 days after service or 60 days after appearance. It would also give the judge authority to delay the order for good cause.
- Amend Rule 16(b) to require that scheduling conference be held face-to-face, striking language that permits them to be held “by telephone, mail, or other means.” However, this does not make the conference mandatory; a judge can still issue a scheduling order based on the parties’ Rule 26(f) report.
- Amend Rules 16(b)(3) and 26(f) to permit a scheduling order and discovery plan to provide for the preservation of ESI and to include clawback agreements reached under Rule 502 of the Federal Rules of Evidence.
- Amend Rule 16(b)(3) to add a new section permitting a scheduling order to “direct that before moving for an order relating to discovery the movant must request a conference with the court.”
- Add a new Rule 26(d)(2) to allow Rule 34 requests to be made in advance of the Rule 26(f) discovery conference.
The proposed amendments will be presented to the Standing Committee at its meeting on June XX. If the Standing Committee gives the go-ahead, the proposals will be published for a six-month period of public comment and public hearings. After the comment period, the Advisory Committee can consider whether to make any further changes and, if so, whether to solicit any further public comment.
Ultimately, the Advisory Committee will send the package back to the Standing Committee for final approval. From there, the rules would go to the Judicial Conference for approval and then to the Supreme Court.