Proposed changes to the Federal Rules of Civil Procedure (Rules) may impact the management, scope and sanctions related to e-discovery in federal courts. The changes are aimed at encouraging early and active case management, ensuring e-discovery remains proportional to the action, and advancing cooperation among parties. If approved, these amendments to the civil rules will become effective on December 1, 2015.

The Committee on Rules of Practice and Procedure made draft versions of these rules available for public comment through February 15, 2014. The proposed changes to the Rules as related to e-discovery are summarized below:

Changes Aimed at Encouraging Early and Active Case Management:

• Rule 16(b)(3) scheduling orders and Rule 26(f) discovery plans would additionally include preservation of electronically stored information, and agreements reached under Federal Rule of Evidence 502 (regarding privilege and work product protection).
• Additionally, Rule 16(b)(3) would expressly permit, as part of the scheduling order, direction that a movant seeking a discovery order must first request a conference with the court.
• Revised Rule 26(d)(2) provides for earlier document requests under Rule 34, allowing disputes regarding the scope of discovery to be discussed during the Rule 16 conference.

Changes Aimed at Proportionality:

• Proportionality is expressly included, along with cooperation, in Rule 1, outlining the scope and purpose of the Rules.
• The current limits to discovery in Rule 26(b)(2)(C)(iii), including proportionality, would expressly apply to limit the scope of discovery, without necessitating a protective order. The scope of discovery would be limited as follows:

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 ….

• Rule 26(c)(1)(B) would expressly provide for the already implicit authority of the court to enter a protective order allocating expenses of discovery.
• The revisions reduce the presumptive number of depositions from 10 to five, and limit the presumptive duration of each deposition to one day of six hours (Rule 30). The changes likewise reduce the number of interrogatories from 25 to 15 (Rule 33), and limit requests for admission to 25 (Rule 36). These presumptive limitations may be increased by stipulation of the parties or court order.
• Revised Rule 34(b)(2) requires that the grounds for objecting to a request for production be stated with specificity, and whether responsive materials are being withheld on that basis.

Changes Aimed at Increasing Cooperation Between Attorneys:

• Rule 1 would add that the rules “are employed by the court and the parties” to instill responsibility for the lawyers to cooperate. Cooperation and proportionality are expressly included within the purpose of the rules.
• Revised Rule 37(e) focuses on the failure to preserve information rather than the failure to produce it. It will provide the court with more express curative measures and sanctions.
• Rule 37(e), as proposed, seeks to instill conformity throughout the federal courts by allowing sanctions or an adverse inference jury instruction only where the party’s actions caused substantial prejudice and were willful or in bad faith, or where they “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.”
• The proposed revisions to Rule 37(e) also enunciate factors for the courts to consider in determining if a party failed to fulfill its preservation obligations, if that failure was willful or in bad faith. These factors include:
  • The extent to which the party was on notice that litigation was likely and that the information would be discoverable;
  • The reasonableness of the party’s efforts to preserve the information;
  • Whether the party received a request to preserve information, whether the request was clear and reasonable and whether the person who made it and the party consulted in good faith about the scope of preservation;
  • The proportionality of the preservation efforts to any anticipated or ongoing litigation; and
  • Whether the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information.

A full version of the proposed changes may be found online here.

Parties are strongly encouraged to comment prior to the February 14, 2014 deadline, or participate in one of the three public hearings on the proposed rules (Washington, D.C., on November 7, 2013; Phoenix on January 9, 2014; or Dallas on February 7, 2014). Cozen O’Connor will be actively monitoring developments during the comment period.