By Bennett B. Borden and Amy P. Frenzen
The Civil Rules Advisory Committee has published proposed amendments to the Federal Rules of Civil Procedure that, if implemented, may significantly change the scope and conduct of discovery in federal cases. The proposed amendments were published today, August 15, and are summarized below. We encourage you to take advantage of the opportunity to comment on the Committee’s proposals.
These amendments are the product of a series of conferences held by the Committee beginning in May 2010 at Duke Law School. These conferences focused on what, if any, additional amendments to the FRCP should be considered since they were last amended in 2006 to address discovery of electronic information. The 2006 amendments are seen as having been largely effective in providing clarity around electronic discovery and, when effectively used, in reigning in its burden and cost. However, since the 2006 amendments, cooperation, proportionality and especially the burden associated with the duty to preserve have become major issues in ediscovery and the new amendments seek to address these and other issues.
It is now largely accepted that the burden and expense of ediscovery can be controlled through cooperation between the parties in order to understand the scope of discoverable information and negotiating a reasonable protocol for identifying and producing it. This push toward cooperation is largely credited to the publication of The Cooperation Proclamation by The Sedona Conference in July 2008, and which has since been endorsed by about 200 state and federal judges and is frequently cited in decisions. Cooperation has been seen as a successful means to reduce the burden of discovery on parties and the courts.
To facilitate and encourage cooperation among parties, the Committee proposes revising Rule 1 as follows (additions underlined): “[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.” This amendment is expected not only to encourage cooperation among the parties, but to lend support to court-initiated efforts to facilitate better cooperation among parties and their counsel when necessary.
Early Court Intervention in Discovery
The Committee conferences revealed that early court intervention significantly increased the level of cooperation among parties and reduced disputes regarding discovery. The proposed amendments seek to leverage this by amending Rule 16(b)(1) to require that scheduling conferences be held face-to-face or by other means of direct, simultaneous communication. This would eliminate the use of correspondence or other asynchronous communications for scheduling conferences and could significantly increase the involvement of the courts early in cases.
In order to make these scheduling conferences more effective, the proposed amendment to Rule 26(d)(2) would allow earlier service of Rule 34 document requests. The proposed amendment permits a party to serve document requests 21 days after service of the summons and complaint. The producing party would not have to produce documents pursuant to the requests until 30 days after the Rule 26(f) conference. However, the amendment is intended to make the 26(f) conference more effective if the parties have specific requests to consider and discuss. It also will make the scheduling conference more effective by allowing the court to resolve disputes regarding discovery earlier than is usual under the current rules. Also, under the proposed new Rule 16(b)(3(v), scheduling orders may also require that a party request a conference with the court before moving for an order to resolve a discovery dispute. This is intended to short circuit potentially expensive motions practice and speed resolution of discovery disputes.
The Duty to Preserve, Proportionality and Sanctionable Conduct
The duty to preserve, how and when it is triggered, and its scope were by far the largest topics of debate at the Committee conferences, and the debate since has been fulsome. The proposed amendments seek to address the burden of preservation in three ways.
First, the Committee addressed both the preservation problem and a perceived over breadth of the scope of discovery by amendments to Rule 26. In the 1983 amendments to the Rules, the Committee added Rule 26(b)(2)(c)(iii), which required the court to limit discovery, if “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” This “proportionality” limitation has been increasingly and successfully used by the courts to reign in the scope of discovery. To further this trend, the proposed amendment to Rule 26 moves this proportionality limitation from Rule 26(b)(2)(c)(iii) into 26(b)(1), which directly addresses the scope of discovery. This also would affect preservation, because it would allow a party to make and defend preservation decisions based upon the proportional benefit of the information compared to the burden of preserving as well as producing it.
Second, the proposed amendment to Rule 37(e) regarding discovery sanctions adds a layer of protection to preservation decisions by allowing the imposition of sanctions in most circumstances only if the party’s actions in failing to preserve or produce documents was “willful or in bad faith” and “caused substantial prejudice in the litigation.” The amendments recognize that parties who adopt “reasonable and proportionate preservation measures should not be subject to sanctions.” The Committee Note clarifies that sanctions for loss of discoverable information “may only be imposed on a finding of willfulness or bad faith, combined with substantial prejudice,” except in rare situations where “a party’s actions cause the loss of information that irreparably deprives another party of any meaningful opportunity to present or defend against the claims in the litigation.” This proposed amendment not only protects reasonable preservation conduct, but it also provides a uniform basis on which sanctions can be imposed as opposed to the current practice where the imposition of sanctions varies widely among Circuits.
Finally, the amendments encourage parties to adopt preservation agreements by including them (as well as agreements regarding Federal Rule of Evidence 502 regarding the disclosure of privileged information) as topics to be considered in the 26(f) conference and as part of the scheduling order.
Responding to Document Requests
Prohibition of Boilerplate Rule 34 Objections
We are all familiar with the typical boilerplate objections that accompany responses to document requests (ambiguous, overbroad, unduly burdensome). The courts have begun to react strongly to these objections, and increasingly strike them as violative of Rule 34. The Committee is proposing several amendments to Rule 34 to facilitate more straightforward responses to document requests. Proposed amendments to Rule 34(b)(2)(B) require that the grounds for objections to document requests be stated with specificity. Additionally, to avoid any ambiguity as to whether documents are being withheld pursuant to the specific objection, Rule 34(b)(2)(C) would be amended to require that an objection “state whether any responsive materials are being withheld on the basis of that objection.” Committee Notes indicate it would be sufficient to describe limitations on searches for responsive documents, such as date or source limitations.
Earlier Production Required
Rule 34(b)(2)(B) would also be amended to add certainty to the timeframe within which a responding party will produce documents. The proposed amendment requires that parties produce responsive documents “no later than the time for inspection stated in the request or a later reasonable time stated in the response.” Current common practice is to respond with objections by the date specified in the request and then produce documents at some later date, or on a rolling basis. This proposed amendment would require the production of documents on the requested date or a specified reasonable date thereafter. The Committee acknowledges the value of a “rolling production,” but a party that chooses to produce documents in this manner should specify beginning and end dates for the production and obtain agreement from the requesting party.
The Remaining Proposed Amendments
Reduction in Time by which to Serve Complaints and Issue Scheduling Orders
The proposed “case management” amendments are intended to diminish or avoid delays in the early stages of litigation. Rule 4(m) would be amended to shorten the timeframe to serve defendants with the summons and complaint from 120 to 60 days. Rule 16(b)(2) would shorten the timeframe in which a scheduling order must be issued from 120 days after any defendant has been served (or 90 days after any defendant has appeared) to 90 days after any defendant has been served (or 60 days after any defendant has appeared).
New Limitations on Depositions, Interrogatories, and Requests for Admissions
In addition to limitations on the scope of discovery, the Committee is also proposing amendments to Rules 30, 31, 33 and 36 to decrease or add new numerical limits on permissible discovery. Proposed amendments to Rules 30 and 31 reduce the number of depositions from 10 to five and the time limit for each deposition from seven hours to six hours. Rule 33 would be revised to lower the number of interrogatories from 25 to 15. Rule 36 would be revised to add a limit of 25 requests for admission, expressly excluding requests to admit the genuineness of documents. As before, parties would still be able to seek leave of court to exceed these limits.
Public Comment Period and Timeline
Following the public comment period in February 2014, the next steps in the amendment process are:
- November 7, 2013 – hearing in Washington, DC
- January 9, 2014 – hearing in Phoenix, AZ
- February 7, 2014 – hearing in Dallas, Texas
- After February 15, 2014 – decide whether to submit proposed amendments to Committee on Rules of Practice and Procedure
- September 2014 – seek Judicial Conference approval
- May 2015 – seek Supreme Court approval
- December 1, 2015 – rules take effect absent Congressional action
These proposed amendments are as potentially influential as the 2006 amendments on the practice of ediscovery. The Committee is seeking public comment from August 15, 2013, to February 15, 2014. We strongly encourage you to read the Committee report, available at http://www.uscourts.gov/RulesAndPolicies/rules/proposed-amendments.aspx, and provide comments to the Committee. It is likely that some form of these amendments will become effective in December 2015. For more information about these proposed amendments, please contact Bennett B. Borden or Jay J. Brudz, Chairs of the Information Governance and eDiscovery Group.
 FRE 502 agreements can be critically important in the conduct of ediscovery and we strongly encourage their inclusion in every case. For more information, please contact Bennett B. Borden or Jay J. Brudz.