Tag Archives: amendments

Major Possible Changes to Federal Discovery Rules

Corporate Counsel reported about a very important and significant change that might occur next year.  Here are the highlights of the proposed amendments (starting on Page 91 of 322).

The e-discovery rules may change once again by next year.  The United States Court’s Advisory Committee on Civil Rules voted last week to send proposed amendments to the Standing Committee on Rules of Practice and Procedure.  The Standing Committee will consider approving or rejecting the proposal in early June.

The most significant proposals would narrow the scope of discovery under Rule 26; impose or reduce numerical limits on written discovery and depositions under Rules 30, 31, 33, and 36; Rule 37 will adopt a uniform set of guidelines regarding sanctions when a party fails to preserve discoverable information; and Rule 34 will tighten the rules governing responses for production of documents.

Rule 26’s proposed amendments are as follows:

  • Rule 26(b)’s proposed amendment restricts the defined scope of discovery to information that is “proportional to the needs of the case.”  The language is as follows:

    “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.

    These proportional considerations are currently listed in Rule(b)(2)(c)(iii).  This amendment would mandate adherence by the parties without court intervention.

  • Rule 26(b)’s proposed amendment would delete the following sentences:

    (1) “For good cause, the court order discovery of any matter relevant to the subject matter involved in the action.  Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

  • Note, that the proposed amendment for Rule 26(b) states that “Information within this scope of discovery need not be admissible in evidence to be discoverable.
  • Rule 26(c) (protective orders) adds “or the allocation of expenses.”

Rules 30’s and 31’s proposed amendments are as follows:

  • The number of depositions (oral and written) would be reduced from 10 to 5.
  • The limit of an oral deposition is reduced to 6 hours.
  • The number of written interrogatories would change from 25 to 15.
  • The number of requests will be 25, except for requests relating to the genuineness of documents.
  • There will be a presumptive limit on the number of Requests for Admissions a party may serve.
  • A court order or a stipulation by the parties may increase the limits on any numerical discovery.

Rule 34’s proposed amendments (which govern the production of documents and electronically stored information) are as follows:

  • The objections to document requests must be stated with specificity.  This requirement has already been applied to interrogatory responses under Rule 33.
  • When the responding party must state that it will produce the requested documents (instead of permitting inspection), the production must be completed by the date for inspection stated in the request or by a later reasonable time stated in the response.
  • A party objecting to a document request must state whether any responsive materials are being withheld on the basis of the objection.

Rule 37(e)’s proposed amendment (which concern sanctions for failure to preserve discoverable information) state:

  • A court may impose sanctions when it finds that a party failed to preserve information that should have been preserved for litigation.  The sanctions includes remedies and curative measures that are not considered “sanctions,” such as allowing additional discovery, requiring a party to recreate or obtain the information that it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.
  • The court may also impose sanctions listed in Rule 37(b)(2)(A) when to address preservation failures.  These sanctions include issue or evidence preclusion, the striking of pleadings, the dismissal of the action in whole or in part, and an adverse inference.
  • The court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith.” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.

 

via On the Cusp of Major Changes to E-Discovery Rules.

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In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality

On February 4, 2013, the Supreme Court of the State of Minnesota adopted amendments to the Rules of Civil Procedure, including those affecting discovery.  Of particular note were amendments to Rules 1 and 26.  Specifically (and significantly), Rule 1 was amended to state that it is the responsibility of the parties and the court to assure proportionality throughout the litigation.  Accordingly, Rule 1 now states (new language is underlined):

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.  They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.  The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

Similarly, in addition to other significant amendments to Rule 26, Rule 26.02(b) has been amended to require that the scope of discovery “comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighed against 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.”  While such limitations to discovery were previously acknowledged, the amended rule more strongly emphasizes the importance of proportionality.

Significant amendments to other rules were also adopted.  Notably, an order attaching “corrective amendments” was entered several days later.  Those orders are available HERE and HERE.  The newly adopted amendments become effective July 1, 2013.

via In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality : Electronic Discovery Law.

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District of Minnesota amendments to Local Rules

Starting on July 23, 2012, the United States District Court for the District of Minnesota’s amendments will come into play.  Most of these amendments are stylistic.  However, there are a couple of substantive changes.

As of note, this summary is intended only as a summary of these changes.  This summary is not exhaustive. The summary is not intended to be legal advice on the rules.

 

The amendments for the Local Rules are as follows:

Local Rule 1.3, Sanctions

The language was amended in accordance with the restyling process.  In addition, LR 1.3 now specifies that it applies to “an attorney, law firm, or party.”

 

Local Rule 3.1, Civil Cover Sheet

The language was amended in accordance with the restyling process.

Local Rule 4.1, Service

The language was amended in accordance with the restyling process.

Local Rule 4.2, Fees

The language was amended in accordance with the restyling process.Subsection (a)(2) replaced the phrase “motion for permission to proceed in forma pauperis” with the actual title of the form from the clerk’s office, “application to proceed in district court without prepaying fees or costs.”

Subsection (a)(2) deleted the sentence “If permission to proceed in forma pauperis is later denied, the complaint shall be stricken.”  The District Court explained that “if the court denies a party’s application to proceed without prepaying fees or costs, the court gives the party an opportunity to pay those fees or costs before the court strikes the party’s complaint.”

Local Rule 5.3,  Time for Filing After Service

The language was amended in accordance with the restyling process.

Local Rule 5.5, Redaction of Transcripts

The language was amended in accordance with the restyling process.

The new subsection (f) reflects the substance of the last sentence of former subsection (b).  Subsection (f) states “The court does not review transcripts to assess whether personal identifiers should be redacted.  Attorneys and unrepresented parties must do so themselves.”

Local Rule 6.1, Continuance

The language was amended in accordance with the restyling process.

Local Rule 7.1, Civil Motion Practice

The language was amended in accordance with the restyling process.

LR 7.1 was reorganized to add subsections (a) Meet and confer requirement, and (d) Motions for Emergency injunctive relief

Under subsection (a), parties must meet and confer before filing any civil motion, except a TRO, and file a meet and confer statement with the motion.  Parties must file a joint stipulation if parties agree on the resolution of all or part of the motion after the meet and confer statement is filed.

Under subsections (b) and (c), the District Court clarified that parties should file motions and supporting documents simultaneously.  In addition, the method of calculating deadlines has been changed.  Deadlines are now based on the filing date of the moving party’s motion and supporting documents, rather than on the hearing date.  Parties also now have 14 days to prepare a reply brief for a dispositive motion rather than the 7 days previously provided.

Subsection (b)(4) identifies types of motions that are considered nondispositive:  (i) motions to amend pleadings; (ii) motions with respect to third party practice; (iii) discovery-related motions; (iv) motions related to joinder and intervention of parties; and (v) motions to conditionally certify a case as a collective action.

Subsection (c) was amended to reflect the different practices of district judges.

Subsection (d) was added to provide guidance on filing motions for emergency injunctive relief.

Subsection (e) was amended to clarify that after filing a timely post-trial or post-judgement motion, the moving party must contact the judge’s calendar clerk to obtain a briefing schedule.

Local Rule 9.3,  Standard forms for habeas corpus petitions and motions by prisoners

The language was amended in accordance with the restyling process.

Local Rule 15.1, Amended pleadings and motions to amend

The language was amended in accordance with the restyling process.

Local Rule 16.1, Control of Pretrial Procedure by Individual Judges

The language was amended in accordance with the restyling process.  In addition, the language regarding ADR was moved to 16.5.  The language requiring parties to consider the use of ADR was removed because it was addressed in LR 26.1 and Forms 3-4.

Local Rule 16.2, Initial Pretrial Conference and Scheduling Order

The language was amended in accordance with the restyling process.

The previous language in (a) was moved to LR 26.1 regarding the initial pretrial conference.

Subsections (c) and (d)(2) were added to specify that issues related to confidential or protected documents must be addressed at the initial pretrial conference and may be addressed in the scheduling order.

Subsection (d)(3) clarifies the nature of discovery deadlines.  The language states, “The discovery deadlines… are deadlines for completing discovery, not for commencing discovery.  To be timely, a discovery request must be served far enough in advance of the applicable discovery deadline that the responding party’s response is due before the discovery deadline.”

Local Rule 16.3, Modification of a Scheduling Order

The language was amended in accordance with the restyling process.

The changes to subsections (a) and (b) are intended to clarify for parties that they cannot simply stipulate to a change in a scheduling order.  Instead, parties must move to modify a scheduling order.

Local Rule 16.4, Case Management Conference

The language was amended in accordance with the restyling process.

Local Rule 16.5, Alternative Dispute Resolution and Mediated Settlement Conference

The language was amended in accordance with the restyling process.

The rule was amended to emphasize that a mediated settlement conference is not required in certain actions.

The time limit (which previously required a mediated settlement conference to be held within 45 days prior to trial) was eliminated.  Subsection (b) states that the mediated settlement conference must occur before trial (except in a proceeding listed in Fed.R.Civ.P. 26(a)(1)(B)).

Other subsections were amended to conform to the language of the Alternative Dispute Resolution Act, 28 USC 651-658.

Local Rule 16.6, Final Pretrial Conference

The language was amended in accordance with the restyling process.

Subsection (b) clarified that although parties must be prepared to discuss the listed subjects, if some of the subjects are not relevant in a particular issue, the court is not required to discuss them.

Subsection (b)(13) clarified that the final pretrial conference can embrace any subjects identified in the relevant provisions of the Federal Rules of Civil Procedure.

Local Rule 16.7, Other Pretrial Conferences

This section was abrogated as redundant.

Local Rule 17.1, Settlement of Action or Claim brought by Guardian or Trustee

The language was amended in accordance with the restyling process.

Local Rule 23.1, Designation of “Class Action” in the Caption

The language was amended in accordance with the restyling process.

Local Rule 26.1, Conference of the Parties Under Fed.R.Civ.P. 26(f); Report; Protective Orders

The language was amended in accordance with the restyling process.

The new subsections (a) and (b) clarify the parties’ obligations to meet and confer and file a report (Form 3 or 4).  Forms 3 and 4 were revised.

The new subsection (c) was added to require the parties to address whether a protective order is necessary and incorporates reference to Forms 5 and 6.

Local Rule 26.2, Form of Certain Discovery Documents

 

This local rule was abrogated.  It was considered unnecessary due to the direction provided in LR 37.1.

Local Rule 26.3, Disclosure and Discovery of Expert Testimony

 

This local rule was abrogated.

Local Rule 26.4, Filing of Discovery Documents

 

This local rule was abrogated.

Local Rule 37.1, Form of Discovery Motions

The former LR 37.1 was abrogated.  LR 37.2 was renumbered was LR 37.1.

The language was amended in accordance with the restyling process.

This rule was amended to require parties to meet and confer before filing any motion, and to file a meet and confer statement with the motion.

Local Rule 37.2,

 

It was renumbered was LR 37.1 after the former LR 37.1 was abrogated.

Local Rule 38.1, Demand for a Jury Trial

The language was amended in accordance with the restyling process.  The rule now instructs parties that they may demand a jury trial either by the method prescribed in LR 38.1 or by any other method that complies with Fed.R.Civ.P. 38(b).

Local Rule 54.3, Time Limit for Motions for Award of Attorney’s Fees and for Costs other than Attorney’s Fees

 

The language was amended in accordance with the restyling process.

Local Rule 72.2, Review of Magistrate Judge Rulings

The language was amended in accordance with the restyling process.

The new subsection (d) clarifies that the format and filing requirements apply to objections and responses to objections filed under this rule in all cases, whether civil or criminal.

via United States District Court – District of Minnesota.

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