FRCP Reform: Prospects for Reducing Disputes and Gamesmanship
Just two years after the 2007 amendments to the Federal Rules of Civil Procedure (Rules), the American College of Trial Lawyers and the ABA both published reports that articulated concerns of both the plaintiff and defense bars regarding discovery practice in federal court.1 The Advisory Committee on the Federal Rules of Civil Procedure (or the Advisory Committee) held a series of meetings at the Duke Civil Litigation Conference in 2010 to facilitate greater discussion regarding thematic challenges, proposed solutions and in particular whether further amendments to the Rules were needed to reduce cost and delay in civil litigation. Through these efforts the Advisory Committee drafted, and now presents for comment, proposed amendments to the Rules.2 The discovery-related amendments, coined the "Duke Rules Package" by the Advisory Committee,3 are below.4
• Rule 1 now states expressly that the court and parties should use the Rules for the just, speedy and inexpensive resolution of actions. Previously, Rule 1 merely stated that the Rules should be interpreted and administered to effect the just, speedy and inexpensive resolution of actions.
• Rules 16(b)(3) and 26(f) now state that scheduling orders and discovery plans may include FRE 502 "clawback" or "non-waiver" agreements. Previously, these rules did not expressly allow scheduling orders and discovery plans to provide for the preservation of electronically stored information or include agreements reached under FRE 502.
• Rules 34 and 26(d)(1)(b) allow parties to serve requests for production prior to the Rule 26(f) conference but the requests are not considered served until the first Rule 26(f) conference. Previously, requests for production could generally not be served until after the Rule 26(f) conference.
• Rule 34(b)(2)(C) provides that objections must include a statement regarding whether any material is being withheld based on the stated objection.
• Rules 26(b)(1) and 26(b)(2)(C)(iii) limit the scope of discovery to what is proportional to the needs of the case, and empower the court to limit the scope of discovery accordingly. The amendments also remove the phrase "any matter relevant to the subject matter involved in the action" from the definition of information falling within the scope of discovery.
• Rule 34(b)(2)(B) requires that objections must be stated with specificity.
• Rules 30, 31, 33 and 36 further reduce the presumptive limits on the number of interrogatories, the number of depositions, and the length of depositions. It also creates a presumptive limit of 25 requests for admission. Presumptive limits, however, were not added for requests for production.5
• Rule 26(c)(1)(B) now includes explicit recognition of the court's power to enter protective orders that re-allocate discovery expenses.
Judicial Case Management
• Rule 16(b) reduces the presumptive deadline for issuing a scheduling order to the earlier of 90 days after the defendant is served or 60 days after the defendant appears (down from 120 and 90 days, respectively).
• Rule 16(b)(3) affords the court the option to include in its scheduling order the requirement to participate in a court conference prior to the filing of discovery motions.
• Rule 26(b)(2)(B) permits the court to alter the limit on the number of requests for admission consistent with its current power to alter presumptive limits under Rules 30, 31 and 33.
Opportunity for Further Progress
The changes related to proportionality and judicial case management have the potential to reduce disputes and facilitate timely and focused discovery in civil litigation. In pursuit of the same goals, many court protocols and local rules have put in place additional ground rules and presumptive limits. The Federal Circuit's Model E-Discovery Order includes presumptive limits on data sources, search terms and custodians.6 The Southern District of New York's Joint Electronic Discovery Submission requires the parties to certify that they have discussed limits on: (i) the number of custodians, (ii) document sources and (iii) file types.7 The Southern District publication also includes a "Pretrial Conference Checklist" that requires parties to demonstrate their adherence to the principle of discovery proportionality by agreeing to limit the breadth of document preservation, reduce the scope of discovery and to limit or prohibit preservation depositions.8
The amendments already reduce the presumptive limits for depositions and interrogatories, and create limits for requests for admission. The creation of presumptive limits on requests for production and commentary in the notes endorsing the practice of limiting the number of custodians, search terms and data sources would do much to reduce cost, provide predictability and facilitate the meet and confer process. Local rules and protocols have already proven the effectiveness of these types of additional guidelines.