On April 29, 2015, Chief Justice John Roberts of the U.S. Supreme Court transmitted letters to Congress formally tendering proposed Amendments to the Federal Rules of Civil Procedure to Congress. These Amendments will become effective on December 1, 2015, unless Congress rejects, modifies or defers them.
The Amendments propose changes to Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84, and the Appendix of Forms. The most significant proposed changes are found in the rules that govern discovery (e.g. 16, 26, 30, 31, 33, 34, and 37), which the Advisory Committee thought needed to be changed in light of the emergence of electronic discovery.
For example, current Rule 26, which governs discovery generally, states the scope of discovery (i.e. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense”), and the limitations of discovery (see 26(2)(C)) in a disjointed fashion. The proposed Rule 26 explicitly acknowledges that discovery should be “proportional,” and clearly delineates the governing standard in a single, clear section:
- Scope in General. 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 importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, 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.
This emphasis on proportionality may help reduce the costs of discovery, both literally and figuratively.
Another major change in the proposed rules is found in Rule 34, which discusses requests for production. With respect to the kinds of responses that are required under Rule 34, the current version, in section (b)(2), only states that a party must either respond or object to each request, and state the reasons for any objection. Amended Rule 34 requires responding parties to be more specific in their responses. Notably, section (b)(2)(C) of Rule 34 will require a party to state whether any materials, not just privileged materials, are being withheld based on an objection. Said differently, if documents are being withheld because a document request is overly broad or unduly burdensome, a party will have to state that it is withholding specific documents on those grounds. This revision to the Amended Rules appears to disfavor corporate defendants who use boilerplate objections in response to expansive discovery. Such a revision to the Federal Rules, however, is not surprising since some district court judges have begun stating in their individual rules that boilerplate objections will no longer be acceptable. See, e.g., Standing Order of Civil Litigation for Mark H. Cohen, United States District Court, Northern District of Georgia at (D)(ii) (“Boilerplate objections in response to discovery requests are strictly prohibited. Parties should not carelessly invoke the usual litany of rote objections . . .”)