For the first time in over twenty years, the Judicial Conference’s Committee on Rules of Practice and Procedure have approved for publication proposals to amend the Federal Rules of Civil Procedure. If enacted, these proposals would significantly limit the scope of discovery – including ediscovery.
The proposals include imposing or reducing the number of depositions, interrogatories, and requests for admission under Rules 30, 33 and 36. But of particular interest to us is the proposed amendments to Rules 26 and 37, which support a proportional approach to discovery – an approach we previously advocated here, here, and here.
The proposed amendments to Rule 26(b)(1) significantly narrow the relevant scope of discovery from any matter that is “reasonably calculated to lead to the discovery of admissible evidence” to discovery that is “proportional to the reasonable needs of the case.” The Committee was concerned by the ever-broadening interpretations of “reasonably calculated” “to obliterate all limits on the scope of discovery [because] any information may lead to other evidence that is relevant and admissible,” particularly given the explosion of electronically stored information.
The Committee also proposed amending Rule 37(e), a safe-harbor provision intended to protect from sanctions parties whose data is deleted as a result of “routine, good-faith operation of an electronic information system,” but which is often ignored by courts. The new Rule 37(e) would apply to the preservation of all discovery, not just ediscovery, and would provide courts with other remedies before imposing sanctions. In addition, amended Rule 37(e) would protect parties that made reasonable efforts to preserve from sanctions, leaving sanctions only for those who engaged in willful or bad faith activity.
Should these amendments pass, the way we litigate cases will likely change dramatically. Parties will be forced to carefully craft focused discovery instead of taking a “kitchen sink” approach often employed today. That said, litigators will have plenty of time to consider the implications — public comments do not open until August 15, and the amended rules would not be enacted until December 2015. All developments will be covered here.