The Advisory Committee on Civil Rules is presenting two sets of proposed rules amendments to the federal judiciary’s Committee on Rules of Practice and Procedure (known as the “Standing Committee”), with a recommendation that the Standing Committee approve publication of the rules for public comment. If the Standing Committee accepts the recommendation when it meets in June, the proposed changes will be open for public comment between August 2013 and February 2014.
From there, the amendments to the federal rules of civil procedure will weave their way through the rulemaking labyrinth, which I won’t bore you with by explaining here. What’s important to understand is that, if ultimately approved, the new rules would become effective in December 2015, at the earliest.
Why Should You Care?
You may be thinking to yourself, “OK, Maureen, but if these amendments won’t be effective for at least two and a half years — if ever — why should I bother reading about them?” The answer: Although these amendments are subject to a long and bureaucratic rulemaking process, you should understand them now because they reflect the thinking of federal judges about important discovery issues today. Chances are, if you’re litigating in federal court, one or more of the concerns addressed by these amendments will crop up in your case. Whether the amendments eventually pass or not, you may be asked by your judge to adjust your litigation strategy or tailor your discovery plan to reflect those concerns — at least within the bounds of what the current rules allow.
Analyzing the Two Separate Initiatives
This blog will take a high-level look at the issues addressed by the amendments. We’ll do it in two parts, as the amendments arise from two different initiatives.
The first initiative came out of a conference held in May 2010 at Duke University, which brought together judges, lawyers and academics to explore possible improvements to civil litigation, and in particular, the expense and inefficiency of the discovery process. Afterwards, the Advisory Committee formed a subcommittee to draft amendments reflecting the discussions at the conference. Today’s post will examine the amendments developed by this Duke Conference Subcommittee.
The second initiative comes from the Discovery Subcommittee, which was asked to draft amendments to Rule 37 to address the growing concern among litigants over the burdens and uncertainty around the obligation of preserving information for litigation. In my next blog post, I’ll dig into these more controversial amendments.
The Duke Conference Subcommittee Amendments
The amendments proposed by the Duke Conference Subcommittee have three primary goals: (1) advancing early, hands-on case management by judges, (2) promoting proportionality in discovery, and (3) improving cooperation among litigants.
Early and Effective Case Management:
The proposed amendments seek to speed up the overall progress of litigation and get judges more active in early case management. They would do so by:
- Accelerating the timelines for service of a summons and complaint after filing, and for issuing the case scheduling order;
- Promoting agreements about preservation of evidence in scheduling orders and discovery plans;
- Encouraging the incorporation into discovery plans of Federal Rule of Evidence 502 orders;
- Allowing scheduling orders to require parties to seek an informal court conference before filing a discovery motion (because such conferences are often quite effective at reducing cost and delay); and
- Permitting the early presentation (but not actual “service”) of requests for production of documents (which the subcommittee hopes will facilitate discussion at the Rule 26(f) conference of the specifics of the requests and potential objections).
Of these groups of amendments, only the first would impose real change. The other four incorporate explicitly into the rules various best practices for case management that already are in use by some judges and litigants. So be prepared to see more judges deploying these practices under the existing rule structure.
Proportionality and Cost-Effectiveness Of Discovery:
Through a number of changes to the discovery rules (Rules 26-37), the amendments hope to promote the “responsible use of discovery proportionate to the needs of the case.”
Some of the more administrative changes would reduce the presumptive numerical limits on the number of depositions, interrogatories and requests for admission. Of course, these limits are always subject to exceptions for good cause.
The revised rules also would require parties responding to requests for production to make objections “with specificity,” and state whether documents are being withheld on the basis of an objection. Thus, no longer will a responding party be allowed to present a long list of boilerplate objections, and then declare “subject to these objections, responsive documents, if any, will be produced” (a common practice that leaves requesting parties scratching their heads and wondering if any documents were withheld because of an objection). If you routinely employ language like this in your discovery responses, get ready for opposing parties to start challenging you more aggressively.
Other proposed changes are more sweeping. First, Rule 26(b)(1) would limit the scope of discovery to that which is “proportional to the needs of the case.” Proportionality is determined by considering the factors that already are found in Rule 26(b)(2)(C)(iii):
“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.”
Although judges can limit discovery on proportionality grounds under the existing rules, either on a party’s motion or sua sponte, the subcommittee’s research suggested that such limitations are not imposed often enough. By expressly limiting the scope of discovery to that which is “proportional,” the Advisory Committee hopes to achieve the goal of proportionality more consistently. With this increased focus on proportionality, litigants should consider using the existing provisions more often — both offensively and defensively — as proportionality arguments may gain more traction with the courts.
Next, Rule 26(c) would be amended to explicitly provide for protective orders that impose terms for the allocation of discovery costs, a/k/a “cost-shifting.” Although courts presently have the inherent authority to order cost-shifting, the amendment is intended to eliminate any doubt that such authority exists. Again, even though courts already have the ability to order allocation of discovery costs, parties may see an increased incidence of such orders in light of the attention given to the issue by the proposed amendments. Producing parties should consider using the Advisory Committee commentary to bolster requests for cost-shifting.
Cooperation in Litigation:
Through a minor amendment to Rule 1, the Advisory Committee hopes to make clear that litigating parties, along with the court, share the obligation to employ the civil rules to secure the “just, speedy, and inexpensive” determination of an action.
More significantly, the proposed Advisory Committee notes to Rule 1 will incorporate a concept getting increased attention from the litigation community: cooperation among parties. If adopted, the committee notes will advise that “[e]ffective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.”
The Sedona Conference© Cooperation Proclamation, along with the judges who have signed on to it, has been preaching the cooperation gospel for years. Although some practitioners have been reluctant to abandon their obstreperous, “Rambo” litigation tactics, they soon may have no choice. Amendments or not, more and more judges are demanding that parties play nice. You may not be singing “Kumbaya” just yet, but it might be wise to learn the tune now.
Coming Soon . . . Proposed Amendments to the Federal Rules Part 2
 For a helpful explanation of how these various committees work together to administer the Rules of Civil Procedure, see this page on the www.uscourts.gov website.
 If you’d like to read the actual rules amendments package, it is found on the www.uscourts.gov website, at pages 77-98 of the .pdf document.
A recognized thought leader in e-discovery, Maureen collaborates with the company’s clients and operations teams to develop innovative information strategies for legal discovery, compliance, and sensitive data protection. She speaks and writes frequently on significant issues in e-discovery and information governance, and participates actively in the Sedona Conference Working Groups on Electronic Document Retention and Production and Data Privacy and Security. Prior to DiscoverReady, Maureen was a partner at Paul Hastings LLP, where she represented Fortune 100 companies in complex employment litigation matters.