Possible Federal Rule Changes

There are a number of possible changes coming to the Federal Rules of Civil Procedure.  This could significantly impact multiple state courts as the states most often adopt the Federal Rules.  Some of the changes are: 

·         Changing the scope of discovery in Rule 26(b) from a relevancy standard to a proportionality standard that takes into account five specific factors - (1) amount in controversy, (2) importance of the issues, (3) parties' resources, (4) importance of the discovery in resolving the issue, and (5) whether the burden or expense of the proposed discovery outweighs its likely benefit.

·         Reducing the presumptive limit of Rule 30 oral depositions from 10 to 5 and limiting the presumptive number of hours for those depositions from seven to six.

·         Reducing the presumptive limit of Rule 33 interrogatories from 25 to 15, including all discrete subparts.

·         Imposing a presumptive limit for the first time on Rule 36 requests for admissions to 25, including all discrete subparts.

·         Changing the Rule 37(e) "safe harbor" provision for preservation of electronically stored information to a set of presumptive standards for when a court may cure or sanction failure to preserve any evidence, not just electronically stored information.

These proposed changes would be a nightmare.  Any amount of normal litigation that is remotely complex requires more than this.  Even many of the defense attorneys I know are opposed to these changes.  The lack of discovery cuts both ways for Plaintiffs and Defendants in assisting in preparing a meaningful case or defense. 

Any Comments to these changes can be submitted electronically at http://www.regulations.gov/#!docketDetail;D=USC-RULES-CV-2013-0002 but addressed to:

Committee on Rules of Practice and Procedure

Administrative Office of the United States Court
One Columbus Circle, NE
Washington, D.C. 20544