Academic journal article Defense Counsel Journal

Federal Rules Revisions-Make Your Voice Heard

Academic journal article Defense Counsel Journal

Federal Rules Revisions-Make Your Voice Heard

Article excerpt

This article originally appeared in the February 2014 Civil Justice Response Committee newsletter.

THE Judicial Conference Advisory Committee on Bankruptcy and Civil Rules has proposed significant amendments to the Federal Civil Rules. The comment period opened August 15, 2013, but unfortunately, there has been little public comment. Many practitioners are still unfamiliar with the scope of these important potential changes. The overwhelming majority of the comments have been pro-plaintiff and anti-business. The Comment period ends February 15, 2014. There is still time to educate yourself and make your voice be heard. This article will strive to make our members aware of the proposed changes and the policy basis underlying same and to articulate the position of the IADC on two key areas of the proposed changes.

As an overview, the IADC agrees with the stated purpose of the revisions as proposed by the Advisory Committee: (1) to foster more cooperation between the parties and court involvement in managing litigation, (2) to provide additional safeguards for parties against sanctions for the failure to preserve discoverable information when the failure was not willful or in bad faith, and (3) to implement a proportionality requirement-that the scope of permissible discovery be proportional to the litigation at issue.

The IADC concurs with the Advisory Committee that the proposed amendments, with some tweaking, will provide the courts with clearer guidance on the manner in which litigants must practice in today's legal arena, an arena made more complex with advancements in technologies; will keep the legal system fair and balanced for all parties; and, will reduce ever-increasing legal costs which threaten to close access to courts.

The IADC supports the proposed amendments to Civil Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and the Rules' Appendix of Forms.

For two key areas of the proposed changes, the IADC has issued a formal policy statement, Rule 26(b)(1) on Scope of Discovery and Rule 37(e) Failure to Preserve Discoverable Information.

I. Rule 26(b)(1) Scope of Discovery

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.

The proposed amendment would also strike the well-known phrase, "[rjelevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." This language has erroneously been used to establish a very broad scope of discovery even though it was intended only to clarify that inadmissible evidence such as hearsay could still be within the scope of discovery so long as it is relevant (a principle the proposed amendment preserves). The proposed change would affect substantial reductions in the expenditure of resources in responding to unwarranted and irrelevant discovery while protecting the rights of litigants to obtain core evidence revealing the veracity or fallacy of claims and defenses and preserving judicial resources.

Moving the current proportionality language from Rule 26(b) (2) (C) (iii) into Rule 26(b)(1) is a modest edit, but if adopted, it would have the important effect of encouraging judges and parties alike to maintain a pragmatic perspective on what discovery should mean to each individual case. Such a pragmatic perspective will assist practitioners in planning for and budgeting the discovery obligations of their clients. …

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