Thursday, August 21, 2014

Tweaking the Federal Rules of Civil Procedure

The federal Judicial Conference Advisory Committee on the Rules of Civil Procedure works continually to update and improve the Federal Rules of Civil Procedure. This effort regularly results in changes to the way each of us handles cases in any forum, since state rules often mirror the federal rules and since arbitral organizations often apply similar guidelines to procedure as set forth in the Federal Rules.

Pending rules amendments can be found at this website. The current proposed rule change getting the most attention are those changes to the rules regarding discovery. A redline version of the proposed changes is located here.  This post will outline briefly the changes proposed to Rules 26, 34, and 37.

Rule 26: Proportionality and Early Requests for the Production of Documents (RFPs)
Current Rule 26(b)(1) grants litigants a broad scope in their efforts to obtain discovery, limited only by Rule 26(b)(2)(C), which grants parties the right to seek court intervention to prevent discovery when: 
the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
The proposed revision moves this "proportionality" language to Rule 26(b)(1) and adds one important consideration: "the parties' relative access to relevant information . . . ." This is aimed at situations -- especially in employment matters -- when one party (the employer) controls most of the information relevant to the case.

A second change that is more substantive in nature relates to when requests for the production of documents may be served. The current rule precludes serving any discovery until a Rule 26(f) conference has occurred. The new Rule 26(d)(2) is to allow parties to deliver requests under Rule 34 on the opposing party so long as 21 days since service of the complaint has passed and the parties have not held a Rule 26(f) conference.  If this occurs, then the RFPs are considered served effective as of the date of the first Rule 26(f) conference.  The Advisory Committee notes state that this change "is designed to facilitate focused discussion during the Rule 26(f) conference.

Rule 34(b): Responding to Requests to Produce
Several important changes in responding to requests for production are included in these proposed rules.  First, of course, the Rule is amended to provide consistency for the dates for responding to the "early" RFPs.  That change is set forth in Rule 34(b)(2).

The rest of the changes are far more substantive and set forth what is now required of parties responding to RFPs. When responding to the request, parties are now allowed to respond by saying that they will produce copies of documents or of electronically stored information rather than permitting inspection.  Production then must be completed no later than the time allowed for inspection set forth in the request or within another reasonable time specified in the response.  It would appear that this change is ministerial in many respects, in that parties have tended to take this route as a practical matter. 

The most important change in Rule 34(b) relates to the objections parties interpose to discovery requests.  Many judges, lawyers, and litigants complain about "boilerplate" or general objections interposed as applying to all discovery requests regardless of whether the general objection actually applies.  Under the proposed new rule, parties would be required to provide specificity to their grounds for objections and, further, whether any responsive materials are being withheld on the basis of the objection. It does not require a log of what was withheld, however, as the Committee notes state.

The Committee notes provide illumination on this last issue. For example, many times parties will object to a document request for being "overly broad." The new rule contemplates that the party interposing that objection must state the scope for the request that is not overly broad and to produce documents accordingly. The example provided is that a party will produce documents that fall within a given time period or that the search for responsive documents is limited to specified sources.

Rule 37(e): Spoliation of Electronically Stored Information
With computers and other electronic devices nearly ubiquitous today, rules to deal with ESI were required. The Committee took its best stab initially in 2006 at trying to find a safe harbor to allow corporations to run their computer systems honestly and in a good faith manner so as to avoid having to keep every byte of electronic information. That "safe harbor" provision did not have any standards provided, and it led to numerous court decisions which refined what was and was not spoliation.

The amended rule is now in at least its second iteration. The Committee offered a proposal in 2013 that tried to provide factors to consider in sanctioning parties. Those factors were rejected after public comment from both the plaintiffs' and defense bar against the proposal. The current proposal, however, made it past the public comment phase.  

As the Committee notes provide, this new rule applies "only if the lost information should have been preserved in the anticipation or conduct of litigation and the party failed to take reasonable steps to preserve it." Basically, the new rule focuses on factors that courts have used already and first determining whether the loss of information was accidental or intentional. 

If the loss of information was accidental, a finding of prejudice is required and, then, measures "no greater than necessary to cure the prejudice" are authorized.  If the loss of information was intentional and occurred "with the intent to deprive another party of the information's use in the litigation," then the Court may either presume the evidence would have been unfavorable to the destroying party, instruct the jury that is either may or must presume that the information would have been unfavorable to the destroying party, or, dismiss the action or enter default judgment.  

Discovery is the most costly, time-consuming, and occasionally frustrating part of litigation. As the Federal Rules of Civil Procedure change, attorney behavior will follow. Assuming these changes are adopted, it will be interesting to see how attorneys respond.

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