The Advisory Committee on Civil Rules (Advisory Committee) is seeking public comment on a number of proposals to amend the FRCP aimed at reducing the costs and burdens of discovery. The two most important of these are a rewrite of Rule 37(e), which regulates sanctions for failure to preserve discoverable information, and a revision to Rule 26(b)(1) which redefines the scope of discovery. The proposed amendments also include changes to Rules 1, 4, 16, 26, 30, 31, 33, 34, 36 and 37.
You are encouraged to testify or submit a letter to the Advisory Committee supporting the amendments with improvements noted below during the public comment period, which began August 15, 2013 and closes February 15, 2014.
Rule 37(e). The proposed new Rule 37(e) would prohibit sanctions for failure to preserve discoverable information unless the failure was “willful or in bad faith” and causes “substantial prejudice.” However, the Advisory Committee should amend the proposed rule to say “willful and in bad faith” to make clear that sanctions apply only to conduct that is both - and not simply intentional. This proposal holds great promise to establish a much-needed uniform national standard that would curtail costly over-preservation and ancillary litigation over allegations of spoliation. The proposed rule differs substantially from the current Rule 37(e), which purports to bar sanctions only where electronically stored information (ESI) is lost due to the good faith operation of an electronic information system. The new proposed rule is not limited to ESI.
Unfortunately, an exception contained in subsection (1)(B)(ii) of the draft could “swallow the rule” by allowing courts to impose sanctions absent any willfulness or bad faith where the loss of information “irreparably deprives” a party of any ability to present or defend the action. Although the Advisory Committee intends for the exception to apply only in the very rarest of situations, there is concern that courts would use the exception to avoid the primary rule. For this reason, the Advisory Committee could make new Rule 37(e) more effective by omitting subsection (1)(B)(ii).
Rule 26(b)(1). The Advisory Committee’s proposed amendment to Rule 26(b)(1) would redefine the scope of discovery to be “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case….” The amendment deletes the “subject matter involved in the action” from the scope of discovery in order to make clear that discovery is defined by the claims and defenses identified in the pleadings. This change would provide a meaningful improvement compared to the overbroad scope of discovery defined by current Rule 26(b)(1), which is a fundamental cause of the high costs and burdens of modern discovery.
Other Rules. The other proposed FRCP amendments include changes to the numerical limits in several discovery categories (reducing the number of Rule 33 interrogatories from 25 to 15, the number of depositions from 10 per party to 5 and the presumptive duration of a deposition from 7 hours to 6, and adopting a presumptive limit of 25 for Rule 36 requests to admit). Another proposal would amend Rule 1 to encourage parties to cooperate. The entire package of proposals is available at: http://www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-0001.
How to File Comments. You can file your comment with the Advisory Committee electronically at this link: http://www.regulations.gov/#!docketDetail;D=USC-RULES-CV-2013-0002. The Committee is also accepting written comments or requests to testify, which should be mailed to the following address: