FRCP Next Steps: Review Comments

    Feb 25, 2014

    February 15 was the deadline for interested parties to submit comments on the proposed amendments to the Federal Civil Rules of Procedure, which seek to add new limits on discovery. In a nutshell, explained Mark P. Chalos, a partner at Lieff Cabraser Heimann & Bernstein LLP, on the Legal Solutions Blog, the proposed changes would:

    • Require a party seeking discovery to establish before getting any discovery that the requests are justified by the value and “importance” of the case
    • Limit the number of depositions, interrogatories, and requests for admissions

    A brief review of the comments received in writing and through public hearings didn’t uncover any surprises. According to Alison Frankel in a posting, the comments revealed:

    • Defense lawyers and business groups praise the Judicial Conference (which presented the amendments) for attempting to reduce the burdens of discovery in civil litigation in the federal courts.
    • Plaintiffs’ lawyers expressed serious concern that proposed limits on depositions, interrogatories, and other discovery tools will exacerbate the challenge of acquiring legitimate information from defendants who don’t want to surrender it.

    In a Jan. 13 letter to the Committee on Rules of Practice and Procedures, U.S. District Judge Shira Scheindlin of the Southern District of New York questioned the need for and impact of some of the proposed changes. She wrote that a change to Proposed Rule 26(b)(1) adds a proportionality assessment to the definition of scope that “invites producing parties to withhold information based on a unilateral determination that the production of certain requested information is not proportional to the needs of the case. This could become a common practice, requiring requesting parties to routinely move to compel the production of the withheld materials. This, in turn, will increase costs and engender delay.”

    In the article, Frankel wrote that Scheindlin, who is a noted authority on e-discovery sanctions and author of the influential Zubulake decisions that were the foundation for the current rules, has expressed her opposition to the proposed new rule for e-discovery sanctions, particularly the rule’s “willful or in bad faith” language. Frankel reported that Scheindlin “is of the view that requiring a showing of bad faith to impose sanctions will encourage parties to handle their e-discovery preservation sloppily.”

    The judge, according to Frankel, also stated that “bad faith” is too high a standard and that the rule should permit sanctions in cases of recklessness or gross negligence. Scheindlin also took issue with the new rule placing the burden of proof on the innocent party rather than on the party that engaged in destruction. In other words, Scheindlin contends the new sanctions proposal “will only create new problems instead of curing old ones.”

    The Advisory Committee, which initially drafted the amendments, is reviewing all the comments they received and will revise, reject, or approve the amendments. Any surviving amendments must then be approved by the full Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court. If Congress accepts them without deferring, modifying, or rejecting them, the final new rules would become effective December 1, 2015.

    ARMA International also submitted comments to the Committee on Rules of Practice and Procedures urging support for proposed changes to federal rules governing the process of information discovery in civil litigation. The comment letter focused on proposed amendments to rules regarding the scope of discovery and sanctions for failure to preserve discoverable information because those rules address issues of concern to records and information management professionals.

    ARMA’s full response can be read here.

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