Fact Sheet: Federal Rule Changes: What's at Stake

[1]See, e.g., Comments of Public Justice, P.C. and the Public Justice Foundation to the Advisory Committee on the Civil Rules on the Draft Proposals To Amend Discovery Rules, March 1, 2013.  Also, writes Trial Magazine, “The new rule would require that discovery be 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 discovery in resolving the issues, and, most significantly, whether the burden or expense of the proposed discovery outweighs its likely benefit.  This new standard essentially gives defendants the specific tools to avoid producing relevant information that is necessary for the plaintiffs to prove their case.” Elisabeth M. Stein, Proposed Changes to Discovery Rules Loom, Trial Magazine (forthcoming September 2013).

[2]Rules 30 and 31 relating to depositions would be significantly changed.  Current rules allow for 10 depositions, each of which may take seven hours.  The new rules limit the number of depositions to five of each, while limiting the number of hours for oral depositions to six, cutting the current amount of time for oral depositions by more than half.  Rule 33 relating to the number of interrogatories would also be changed.  Current rules allow for 25 interrogatories.  The new rule would cut that to 15, including all discrete subparts. Rule 36 would create a limit of 25 Requests for Admissions, including all discrete subparts.  This is a major change since it adds a limit where one currently does not exist. The changes are presumptive, meaning that courts will presume they should apply unless an appeal is made otherwise.  So while it may be technically possible to overcome these limits, this will be difficult and therefore they will apply in many important cases.

[3]See., e.g., Nineteenth Century Rules For Twenty-First Century Courts? An Analysis and Critique of 21st Century Civil Justice System: A Roadmap For Reform Pilot Project Rules (Implementing The Final Report On The Joint Project Of The American College Of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System) Analysis and Critique Prepared by Center for Constitutional Litigation, PC, Washington, DC March, 2010. (This proposal “radically alters the standard by which spoliation of evidence is judged. Currently, a duty to preserve arises when litigation is reasonably anticipated, and even negligent breach of the duty can be sanctioned. Pension Plan v. Banc of Am. Sec., LLC, No. 05-civ-9016, 2010 WL 184312, *12 (S.D.N.Y. Jan. 15, 2010) (Shira A. Scheindlin, D.J.) (emphasis added).  Under the existing regime, the level of culpability (negligence, recklessness, intentional conduct) affects the degree of sanction, not the possibility of it. Id. The existing regime is deeply grounded in the protection of the integrity of judicial processes. Id. at *12 & n.24.”)  Writes Trial Magazine, “[T]he Judicial Conference recently added a change to Rule 37(e) dealing with sanctions for failure to preserve.  This rule change completely replaces the “safe harbor” provision for preservation of electronically stored information with a set of standards for when a court may cure or sanction failure to preserve any evidence, not just electronically stored information.  The change would specifically place limitations on an adverse inference jury instruction as a cure for negligent failure to preserve evidence, even though numerous states specifically permit it.  The rule change also allows the court to consider ‘proportionality’ of the preservation efforts, likely as an appeal to defendants who do not want to preserve large amounts of information.” Elisabeth M. Stein, Proposed Changes to Discovery Rules Loom, Trial Magazine (forthcoming September 2013).

[4]Comments of Public Justice, P.C. and the Public Justice Foundation to the Advisory Committee on the Civil Rules on the Draft Proposals To Amend Discovery Rules, March 1, 2013. 

[5]Letter from Eric Cramer, President, Committee to Support the Antitrust Laws, to Advisory Committee on Civil Rules, March 22, 2013.  (“Antitrust conspiracies and cartels, by their nature, are secretive and sometimes can only be proven by putting together strands of direct evidence of agreement from multiple sources, by assembling circumstantial evidence from a variety of sources and means, or both.  Second, anticompetitive schemes are often hatched and executed deep within the workings of complex businesses and industries. Taking a single antitrust case from motion practice to a jury trial can require proving relevant markets, proving anticompetitive conduct, showing impact and damages flowing from the challenged conduct, and refuting procompetitive justifications.  The evidence vital to each of these elements and issues is regularly in the sole possession of the defendants, or sometimes dispersed amongst a variety of far flung third parties.  For antitrust plaintiffs facing information asymmetry, the discovery rules must provide fair access to defendants’ and third parties’ information and documents—or the antitrust laws cannot be effectively enforced through private civil litigation.”)

[6]See, e.g., David Halpern, Discovery Abuse: How Defendants in Products Liability Lawsuits Hide and Destroy Evidence , Public Citizen (July 1997), http://www.citizen.org/congress/article_redirect.cfm?ID=918.  Examples of typical discovery abuses include providing misleading responses to discovery requests – responses that obscure the fact that the defendant is deliberately withholding documents sought by the plaintiff; shielding mountains of documents behind the attorney-client privilege without demonstrating or even confirming that all such documents are subject to the privilege; seeking elaborate protective orders aimed at hiding damaging product information from the public, the media and government agencies – as well as from others who claim injury from the same product; and finally, forcing plaintiffs to agree to forever seal the records of a case – including, sometimes, the transcripts of a public trial. Some cases involved defendants refusing to comply even after judicial orders were issued. In other cases, defendants blatantly concealed and destroyed documents relevant to their defective products – often while denying that such records ever existed. These problems are certainly continuing and could become worse under new e-discovery rules. See also, for example, “Court Awards $750,000 as Civil Contempt Sanction For Discovery Abuse,” E-discovery Case Law Update , April 15, 2011.

[7]See, Comments of Public Justice, P.C. and the Public Justice Foundation to the Advisory Committee on the Civil Rules on the Draft Proposals To Amend Discovery Rules, March 1, 2013.  (“[T]he empirical work of the Federal Judicial Center … supports the conclusion that the rules are working. Indeed in its presentation at the Standing Committee’s January 2013 meeting, the Federal Judicial Center Research slide presentation showed that the large majority of practitioners believed discovery costs were in fact proportional to the stakes in the litigation.”)