The drafters of the US Federal Rules of Civil Procedure have set a February 15, 2014, deadline for public comment on significant proposed changes to the discovery rules. Because the proposed amendments narrow the subject matter of discovery and further limit the discovery methods that can be used, they offer the prospect of reduced litigation cost and risk to businesses and organizations. The Judiciary is eager to hear as many points of view as possible, and has posed five specific questions for comment, described below. Public comment materially influenced the 2006 electronic discovery amendments and may do so again. If you are interested in discussing the comment process please contact us.

Comments may be submitted electronically at www.regulations.gov.

Or they may be sent by mail to:

Committee on Rules of Practice and Procedure Administrative Office of the United States Courts One Columbus Circle, NE Washington, DC 20544

Instructions for submission are available on the United States Courts website.

The most recent release (August 15, 2013) does not make material changes to the previously-published Advisory Committee Report. Therefore our earlier summary and analysis of the proposed rules remains accurate and is reprinted below for your convenience.

Major Proposed Changes

  • Proportionality: The amendment moves proportionality from its present location (which requires Court action) front and center to Rule 26(b)(1). Not only is discovery limited to matters relevant to the parties' claims and defenses, the amendment expressly limits discovery to that which is "proportional to the needs of the case" considering the amount in controversy, the importance of the issues, the parties' resources, the importance of the discovery to the issues and whether the burden and expense of the discovery outweighs its benefit.
  • No Severe Sanction For Loss of Data Where Party Acted in Good Faith: The proposed rule says the court may not impose the more severe sanctions—adverse inferences or the sanctions set forth in Fed. R. Civ. P. 37(b)(2)(A) such as striking claims or defenses or entering default—unless it is shown that the responding party acted willfully or in bad faith, with one possible exception. The exception would apply where the loss of data "irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation"; the drafters specifically requested comment on whether to include this exception, as described below.
  • Negligence-Based Sanctions Rejected: The drafters expressly reject the rule of Residential Funding Corp. and other cases (primarily from the Courts of the 2d Circuit) that permit a Court to sanction a party for the negligent loss of data.
  • Preservation Limitations: The drafters explain that the primary goal of the sanctions-rule changes is to eliminate incentives to overbroad preservation and instead to provide "guidance for a court by recognizing that a party that adopts reasonable and proportionate preservation measures should not be subject to sanctions." (Emphasis supplied.) The proposed amendment includes among the factors to consider in assessing a party's preservation effort "the proportionality of the preservation efforts to any anticipated or ongoing litigation."
  • Presumptive Limit on Depositions Reduced to 5: The number of depositions allowed would be reduced from 10, under current law, to 5 (absent agreement or order of Court) and the time allowed would be reduced from 7 hours to 6 hours.
  • Presumptive Limit on Interrogatories and Requests for Admission: The amendment would create a new limit of 25 Requests for Admission (excepting Requests going to document genuineness), and would reduce the presumptive limit on Interrogatories from 25 to 15, both absent agreement or leave of Court.

Questions from the Drafters for Comment

The drafters request comment on the following specific questions:

  1. Should Rule 37(e) apply to all discovery (as is proposed) or should it be limited just to the loss of electronically stored information?

Current Rule 37(e) is limited to the failure to provide discovery of electronically stored information and therefore does not cover paper discovery. Proposed amended Rule 37(e) not only limits severe sanctions to cases of bad faith or willful misconduct, it also extends that rule to all documents or tangible evidence, not just electronically stored information.  

  1. Should the proposed amendment to Rule 37 include the proposed alternative to the willfulness/bad faith requirement where the loss of discoverable information "irreparably deprived a party of any meaningful opportunity to present or defend against claims in the litigation?"  
  2. Should Rule 37(e)'s safe harbor for ESI "lost as a result of the routine, good-faith operation of an electronic information system" be retained?

The Committee's Note says the Rule 37(e) safe harbor has been used rarely and is encompassed by the amended rule's other provisions.  

  1. Should the Rules provide additional definition of "substantial prejudice?"

Leaving aside the alternative described in question 2 above, the proposed amendment states that the Court may impose a severe sanction only where there was a failure to preserve discoverable information that should have been preserved and the party's actions caused both "substantial prejudice" and were willful or in bad faith." The drafters ask if the Notes should specify in greater detail what constitutes "substantial prejudice."  

  1. Should there be an additional definition of willfulness or bad faith and if so, what should the definition include?

Other Points

  • Encouraging Pre-Motion Conferences: Although the Committee stepped back from requiring a conference with the Court before a discovery motion can be filed, as judges in some jurisdictions do, it in effect encouraged pre-motion conferences by suggesting that a Court's Rule 16 scheduling order should include such a requirement.
  • Early Document Requests: The amendment proposes to authorize the delivery of Rule 34 Document Requests before the Rule 26(f) conference, to facilitate discussion of the requests at the conference, but the time to respond to those requests would not begin to run until after the Rule 26(f) conference. Under current law, Rule 34 Requests may not even be served until after the Rule 26(f) conference, without leave of Court.
  • Elimination of exception to allow discovery of information relevant to subject matter of cause of action: Whereas Rule 26 currently permits the Court to order discovery of information "relevant to the subject matter involved in the action," upon a good-cause showing, the amendment would eliminate this exception. Under the proposed amendment, to obtain discovery beyond the pleadings, a party would have to amend its pleading.
  • Discovery into the location of documents and the identity of witnesses still permitted: Although the amendment deletes reference to discovery of "the existence, description, nature, custody, condition, and location of documents or other tangible things," the drafters make clear that the amendment does not change current law: "Discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the rule text with these examples."
  • Specific Objections to Rule 34 Document Requests Required: The amendment would require that objections to document requests be made with specificity and that responding parties must state whether responsive documents have been withheld; the Notes are expected to say that the producing party must also state "the limits that have controlled the search for responsive and relevant materials."
  • Cooperation: The Drafters' Note incorporates cooperation by stating in connection with Rule 1: "effective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure."

View the full text of the August 15, 2013 release.