At its Spring meeting Thursday and Friday in Washington, D.C., the Judicial Conference's Committee on Rules of Practice and Procedure (aka, the Standing Committee) approved a revised package of amendments, which were recommended by its Advisory Committee on Rules of Civil Procedure in a May 2 report.
The amendments include significant changes from the original proposals, reflecting feedback from three public hearings that drew more than 120 witnesses and 2,356 written comments. The Standing Committee members were effusive in their praise for the open, transparent process that the Rules Committee and its two subcommittees have followed after the 2010 Civil Litigation Conference, held at Duke University's law school, sponsored and organized by the advisory committee.
Among other amendments approved was a new form of Rule 37(e), changes to Rule 1 and a controversial reworking of Rule 26(b)(1). The original multi-layered proposal for a new Rule 37(e) was scrapped in favor of a simplified rule limited to electronically stored information. An ill-fated attempt to reduce presumptive limits on certain discovery devices was abandoned and a sharply re-focused Rule 26(b)(1) was approved to emphasize that discovery must be both relevant and proportional to the needs of the case.
The next stop is a review by the Judicial Conference in September. If approved, the U.S. Supreme Court will be asked to review and vote on whether to send the amendments to Congress. If that occurs before May 2015, the individual rules will become effective in December 2015, unless Congress disapproves.
Scope of Discovery
A core recommendation is to move the listed proportionality "factors" from later in Rule 26 into the definition of scope of discovery set out in Rule 26(b)(1). The Rules Committee is convinced that the change “will not limit proportional discovery,” but will have an impact only at the margins, where unlimited discovery is inappropriate.
It was explained that there is no intent to change the burden of proof involved. As is the practice when a party claims that “undue burden” bars a discovery request, courts will seek the information relevant to the assessment of proportionality from both parties, with the ultimate responsibility to decide whether the request is proportional resting with the court.
However, the Rules Committee has adjusted the order of factors listed in the rule so that “the amount in controversy” is secondary to the importance of “discovery in resolving the issues.” The rule will also require consideration of the “relative access” of the parties to the information.
A member asked whether revised Rule 26(b)(1) was intended to guide assessment of what ESI “should have been preserved” under revised Rule 37(e), which is discussed below. The response was that the assessment of whether “reasonable steps” had been undertaken might involve actions taken before a complaint was filed and that under those circumstances, reliance on the common law on the topic was deemed more appropriate.
Cooperation
The Standing Committee also approved the explicit acknowledgment of responsibility by both courts and parties for securing the goals of Rule 1 (the “just, speedy, and inexpensive determination of every action”) by an amendment to the text. The Committee Note also acknowledges the role of cooperation in the effort, but will clarify that there is no intention to create a right to sanctions for failures to cooperate.
Failure to Preserve
The recommended replacement for Rule 37(e) garnered considerable scrutiny by members of the Standing Committee, given that the revised proposal differs dramatically from the original proposal. U.S. Judge David Campbell (D. Ariz.)—chairman of the Rules Committee—led a thorough discussion by describing the background to the revised proposal and then dealing with a series of difficult hypotheticals testing the application of the rule.
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