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    Comments Prompt More Changes to FRCP

    Apr 28, 2014


    Final changes to the Federal Rules of Civil Procedure were accepted by the Advisory Committee on Civil Rules during a public hearing in Oregon on April 10 and 11. According to Bloomberg BNA’s report on the meeting, the final changes were heavily influenced by the public hearings and more than 2,000 written comments it received regarding proposed changes to the rules governing electronic discovery.

    One of the sections that drew the most fire was 37(e) on failure to preserve electronically stored information (ESI). According to Advisory Committee on Civil Rules member Judge Paul Grimm, of the District of Maryland, many comments raised serious questions about whether the framework and approach of Rule 37 adequately addressed issues of duty to preserve and remedial and punitive measures. The committee ultimately chose to simplify the rule: Courts cannot issue an adverse inference instruction or enter a default judgment where intentional destruction has not been found.

    Rule 26, which deals with proportionality and discovery scope, also drew a lot of comment. The committee amended the rule to require that discovery be proportional to the needs of the case. Specifically, “Unless otherwise limited by court order the scope of discovery is as follows (italics denote revision):

    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 importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, 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.

    Although this signals a major milestone in the process of changing the rules, there are still many steps ahead. The changes approved by the Advisory Committee on Civil Rules will be submitted in late May to the Committee on Rules of Practice and Procedure (the Standing Committee). The Standing Committee may accept, reject, or modify the recommendations.

    Once the changes are approved by the Standing Committee, the proposals will be submitted to the Judicial Conference which, upon its approval, will submit the amendments to the Supreme Court. If the Court approves them, they will go to Congress for its consideration by May 1 of the year in which the amendments will take effect (likely 2015). If Congress approves them, the rules will take effect on December 1 of that same year.

     


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