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.