Changes to the Federal Rules of Civil Procedure – the procedural rules that govern the life of a case in the federal trial courts – are on the horizon. On June 3, 2013, the Standing Committee on Rules of Practice and Procedure (the “Standing Committee”) approved for publication a report containing proposed amendments to the Federal Rules of Civil Procedure (the “Report”). On August 15, 2013, the Report was released to the bench and bar for a six month public comment period, which includes a series of public hearings held in Washington, D.C., Phoenix, Arizona, and Dallas, Texas. The public comment period closes on February 15, 2014.
If approved by the Standing Committee, the proposed amendments will be submitted to the Judicial Conference with a recommendation for approval, who in turn submits the proposals to the Supreme Court. If approved by the Supreme Court, Congress has seven months to approve or reject the new rules. The revised rules would be officially promulgated on or before May 1, 2014, and take effect on or after December 1, 2014.
If approved, the proposed changes will have a significant impact on practice in the federal courts. The changes are designed to promote early case management, streamline discovery, and to advance cooperation among the parties. This paper summarizes the proposed changes reflected in the Report, considers the rationale for the proposed changes, and discusses the reaction thus far to the proposed amendments.
I. Summary of the Proposed Amendments
For many years now, courts and litigants have recognized the escalating cost of discovery and pre-trial practice in federal civil litigation. In May 2010, a conference was held at Duke University Law School (the “Duke Conference”) to discuss ideas and proposals to reduce the cost and delay in civil litigation. Although numerous ideas were considered at the Duke Conference, the main themes to emerge from the conference were proportionality in discovery, cooperation among lawyers, and early and active judicial case management. The majority of the proposed changes to the Federal Rules of Civil Procedure were generated at the Duke Conference – the so-called “Duke Rules Package”. The Duke Rules Package contains a comprehensive proposal to amend Rules 4, 16, 26, 30, 31, 33, 34, 36, and 37 of the Federal Rules of Civil Procedure. In addition to the Duke Rules Package, the Civil Rules Advisory Committee’s Discovery Subcommittee also proposed revisions to Rule 37(e), which seeks to modify the use of sanctions for e-discovery violations by adopting a uniform standard for spoliation.
A. The Duke Rules Package – Proposed Amendments to Federal Rules of Civil Procedure 4, 16, 26, 30, 31, 33, 34, 36, and 37.1
1. Rule 4(m) – Service of Summons and Complaint
Rule 4(m) would be revised to shorten the time to serve the summons and complaint from 120 days to 60 days. The result of this amendment will be the commencement of civil actions in half-the-time. This proposal stems from the perception that the early stages of litigation often take too long. Like the present rule, the court may continue to extend the time if the plaintiff shows good cause for the failure to serve within the specified time frame.
2. Rule 16(b)(2) – Timing of Scheduling Order
Under the current version of Rule 16(b)(2), the district judge must issue a scheduling order within the earlier of 120 days after any defendant has been served or 90 days after any defendant has appeared. The proposed amendment to Rule 16(b)(2) cuts these times to 90 days after any defendant is served or 60 days after any defendant appears. By reducing these time frames, the drafters again seek to reduce the down-time associated with the early stages of federal court litigation.
3. Rule 16(b)(1)(B) – Scheduling Conference
The proposed amendment to Rule 16(b)(1)(B) authorizes the issuance of a scheduling order after receiving the parties’ Rule 26(f) report or after consulting “at a scheduling conference by telephone, mail, or other means.” The immediate take-away from this proposed rule is that the drafters view an actual scheduling conference by direct communication among the parties and the court to be valuable. Although conferences are not required and a judge may issue a scheduling order after receiving parties’ Rule 26(f) report, if the court is going to hold a scheduling conference it must do so through direct interaction with counsel.
4. Rule 16(b)(3), Rule 26(f) – Contents of Scheduling Order
The proposed amendment to Rule 16(b)(3) provides that additional subjects may be included in the court’s initial scheduling order. Under the proposed rule, a scheduling order and discovery plan would be permitted to include provisions for the preservation of electronically stored information and to include agreements reached under Rule 502 of the Federal Rules of Evidence. Additionally, the proposed rule would add a provision permitting a scheduling order to “direct that before moving for an order relating to discovery the movant must request a conference with the court.” The proposal, however, stops short of mandating that all scheduling orders contain such a provision. This change effectively adopts the practice that is now a local rule in many federal courts throughout the country.
5. Rule 26(d)(1) – Early Requests for Production
The proposed amendment to Rule 26(d)(2) permits a party to serve requests for production of documents under Rule 34 before the parties conduct their Rule 26(f) Conference. However, the thirty-day time period for responding to this discovery would not commence until the parties conduct their Rule 26(f) Conference.
6. Rule 26(b)(1) – Proportionality in Discovery
The proposal to amend Rule 26(b)(1) introduces the concept of proportionality in discovery. Rule 26(b)(1) provides the general scope of civil discovery in federal courts. The current version of the rule provides that unless the court orders otherwise, a party may obtain discovery “regarding any non-privileged matter that is relevant to any party’s claim or defense – including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” The rule also states that relevant information does not have to be admissible at trial, so long as “the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”
The proposed amendments to Rule 26(b)(1) significantly alter these standards. First, Rule 26 would be amended to provide that discovery must be “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 discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Second, the proposed amendment removes the language allowing discovery of relevant but inadmissible information so long as it appears reasonably calculated to lead to the discovery of admissible evidence. Courts and litigants have frequently relied on this language to justify a broad scope of discovery simply because it is “reasonably calculated” to lead to the discovery of admissible evidence. If the proposed amendment is adopted, such reliance would no longer be permissible.
7. Rules 30, 31, 33, and 36 – Presumptive Numerical Limits to Discovery
The proposed amendments also seek to reduce the limits of certain types of discovery
included in the current version of the rules. The amendments propose the following new limits on depositions and written discovery:
Depositions: The presumptive limit would be reduced to 5 depositions total. The presumptive length of a deposition would be limited to a duration of 1 day of 6 hours.
Interrogatories: The presumptive limit would be reduced to 15 interrogatories.
Requests for Admission: A presumptive limit of 25 requests would be added to the rules. Currently, there is no limit. Requests to admit the genuineness of documents would not be subject to the new limit.
8. Rule 34 – Objections and Responses to Requests for Production
The proposed amendment adds two new concepts to Rule 34. First, Rule 34(b)(2)(B) would 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.” Vague objections and not stating whether documents have been withheld will now be specifically prohibited under the proposed rules.
B. Proposed Revisions to Rule 37(e)
The Civil Rules Advisory Committee’s objective in revising Rule 37(e) is to replace the differing treatment of preservation obligations and sanctions issues in different federal circuits throughout the country by adopting a uniform standard. Under the amended rule, in all but very exceptional cases in which a failure to preserve information “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation” sanctions could only be employed if the court finds that the failure to preserve was willful or in bad faith and that it caused substantial prejudice in the litigation. Accordingly, a negligence standard for sanctions relating to spoliation of evidence is explicitly rejected. This new standard is contrary to certain high profile spoliation standards that have emerged in recent years, including the negligence standard adopted by in Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002). Proposed Rule 37(e) also would remove any reliance by a court on its “inherent powers” to sanction a party for spoliation of evidence.
Under the proposed rule, even where the standard for sanctions has not been established, a court still would have the ability to order curative measures such as permitting additional discovery or ordering a party to pay the reasonable attorney’s fees and expenses caused by the failure to retain the discoverable information. The scope of this provision is unclear.
Notably, unlike the current version of Rule 37(e), the proposed Rule 37(e) applies to all types of discoverable information and not just electronically stored information.
A complete list of the proposed amendments, as well as the Report of the Advisory Committee on Civil Rules, is available athttp://www.uscourts.gov/uscourts/rules/preliminary- draft-proposed-amendments.pdf.
II. Reaction to the Proposed Amendments
The proposed amendments are subject to a public comment period until February 15, 2014. Comments that have been submitted are publicly available at http://www.regulations.gov/#!docketDetail;D=USC-RULES-CV-2013-0002.
The proposed amendments have received a mixed response from the public. A review of the proposed amendments reveals that the majority of individuals who have submitted comments have concerns about one or more of the proposed rules. In particular, self-identified plaintiff’s attorneys have expressed concern about the presumptive numerical limits on written discovery and depositions, as well as the shorter presumptive time period a party will have to conduct a deposition. Commentators also have expressed concern over the new proportionality considerations in the proposed rules and whether they will unfairly limit a litigant’s ability to obtain the necessary discoverable information to prepare for trial.
Additionally, commentators have expressed concern over the proposed amendment to Rule 37(e) because it shifts the burden to the innocent party to explain why missing information irreparably deprives it of a “meaningful opportunity to present or defend against the claims in the litigation.” Some commentators also have expressed the opinion that willfulness and bad faith are too high a standard to determine whether sanctions are warranted for a loss of discoverable information.
Because the proposed amendments are preliminary and still subject to public comment, it remains unclear to what extent the proposed amendments will be modified before becoming final. It is clear, however, that the proposed rules, at least in their current form, are a significant revision to the Federal Rules of Civil Procedure. The proposed rules should be monitored through the remainder of the rule-making process so that litigants are properly prepared for practice under the proposed rules if and when they are promulgated.