2014: Winter Issue

Are Controversial Changes to the Federal Procedural Rules on the Horizon?

BY: MICHAEL ARKFELD --  Are you familiar with the proposed amendments to the Federal Rules of Civil Procedure? You should be―they are controversial and change some of the key provisions regarding management, scope of discovery and sanctions for non preservation of evidence under certain circumstances. Some call them the most controversial proposed changes to the federal rules since they were enacted. Click here for a copy of the proposed rules. http://www.ediscoveryeducationcenter.com/eDiscovery-Blog.

However, before reviewing the rules, let’s review the American Bar Association’s “agenda for justice" when proposing changes to the justice system.

The “agenda for justice” reflects three overriding principles:

First, any change to the justice system should be based on a desire to protect and enhance the ability of all persons to use the justice system.

Second, reform should be directed to building a justice system that is more efficient and more effective for members of the public who use it, not just for lawyers, judges and others who work in that system.

And third, the justice system must ensure equal justice under law for all. 

An Agenda for Justice: ABA Perspectives on Criminal and Civil Justice Issues, July, 1996.

The proposed rules encompass both case management, scope of discovery and sanction changes.

The proposed management changes include that a scheduling order is to be issued 90 days after service instead of 120 or 60 days after defendant has appeared, order may provide for ESI “preservation,” may include agreements reached under FRE 502 and the parties must have a pre-conference with the Court,  before moving for an order. The requests for admission have a presumptive limit of 25, meet and confer discovery plan must include discussion about “preservation” of ESI and “whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502. The number of depositions is reduced from 10 to 5 and the hours from 7 to 6 hours in length and in a protective order the Court may specify terms regarding “allocation of expenses, for the disclosure or discovery.”

The most controversial of the changes involve Rules 26 and 37.

 Rule 26 (b) Discovery Scope and Limits, is proposed to be changed as follows,

“(1) 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 amount in controversy, the importance of the issues at stake in the action, 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.

Rule 37(e) are as follows,

(e) Failure to Preserve Discoverable Information.

(1) Curative measures; sanctions. If a party failed to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation, the court may:

     (A) permit additional discovery, order curative measures, or order the party to pay
           the reasonable expenses, including attorney’s fees, caused by the failure; and

     (B) impose any sanction listed in Rule 37(b)(2)(A) or give an adverse inference jury
           instruction, but only if the court finds that the party’s actions:

           (i) caused substantial prejudice in the litigation and were willful or in bad faith; or

           (ii) irreparably deprived a party of any meaningful opportunity to present or defend
                 against the claims in the litigation.

(2) Factors to be considered in assessing a party’s conduct. The court should consider all relevant factors in determining whether a party failed to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation, and whether the failure was willful or in bad faith. The factors include:

     (A) the extent to which the party was on notice that litigation was likely and that the 
           information would be discoverable;

     (B) the reasonableness of the party’s efforts to preserve the information;

     (C) whether the party received a request to preserve information, whether the
           request was clear and reasonable, and whether the person who made it
           and the party consulted in good faith about the scope of preservation;

     (D) the proportionality of the preservation efforts to any anticipated or ongoing litigation; and

     (E) whether the party timely sought the court’s guidance on any unresolved disputes about
           preserving discoverable information.

Have the proposed rules met the American Bar Association’s “agenda for justice?” Judge Shira Scheindlin criticized the proposed rules in the Sekisui American Corporation, et al. vs. Trudel-Hart decision. Click here for a copy of the opinion.

The public comment period is now open and you can submit your comments online at the United States Courts site. In addition, the Courts are holding three public hearings on the proposed amendments on the following dates in Washington, D.C., on November 7, 2013; in Phoenix, Arizona, on January 9, 2014; and in Dallas, Texas, on February 7, 2014…. If you wish to testify, you must notify the Committee at the above addresses at least 30 days before the scheduled hearing.

These are important proposed changes to the rules, which usually are followed by state court procedural rule changes.

Michael is the author of Arkfeld on Electronic Discovery and Evidence treatise published by LexisNexis and an eDiscovery education instructor. He can be reached at michael@arkfeld.com and his website is eDiscovery Education Center.