Coming Soon: Major Changes to E-Discovery Rules

In 2014, we may find ourselves teetering on the edge of some major amendments to the discovery provisions of the Federal Rules of Civil Procedure. Just this month, the United States Courts’ Advisory Committee on Civil Rules voted to send proposed amendments to its Standing Committee on Rules and Practice and Procedure. Their recommendation is that these proposed amendments be approved for publication later this year. These amendments are both significant and controversial because they would narrow the scope of discovery, impose or reduce numerical limits on written discovery, and determine the imposition of sanctions on parties that fail to preserve discoverable information.

Proposed Amendments to Rules

Rule 26: Rule 26(b) governs the scope of and limitations on discovery. The amendments to this Rule would restrict the defined range of discovery and limit this to information that is “proportional to the needs of the case.” Under the old Rule, the court was required to limit discovery that it determined was disproportionate. The new amendment would require both parties to adhere to the defined scope of discovery without the need for court intervention.

In addition, the proposed amendment would strike two sentences from the current Rule 26 (b)(1). “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” The deletion of these lines alone will potentially limit the scope of discovery.

Rule 30 and 31: Amendments to these Rules would limit the number of depositions a party may take into a case from 10 to 5. The limit of 7 hours per oral deposition would also be reduced to six.

Rule 33: Amendments to this Rule would limit the number of written interrogatories permitted to 15. Currently, the presumptive number of written interrogatories permitted is 25.

Rule 34: Rule 34 governs the production of documents and electronically stored information. The proposed amendment clarifies that objections to document requests must be stated specifically. Secondly, when a responding party states that it will produce the requested documents instead of allowing an inspection, the document must be produced within a specified time frame. Any party that objects to a document request must declare whether any responsive materials were being withheld on the basis of objection.

Rule 36: Amendments to this Rule aim to put a presumptive limit on the number of Requests for Admission. A party would only be allowed to serve 25 requests. This does not inclue requests that are related to the genuineness of documents.

Rule 37: Clarification of 37(f)  aims to limit the sanctions that a court can impose if routine destruction of information occurs.  This does not provide an escape from having to demonstrate good faith in responding to discovery and preservation obligations, but limits the application of sanctions where information is lost without any clear intention for such loss to occur.  Later clarifications of this section required the party who lost electronically stored information demonstrating good faith in taking reasonable steps to ensure relevant sources of ESI were preserved after such sources were reasonably likely to be a source of discoverable information.

The committee states that FRCP Rule 37(f) would not prevent courts from ordering other adjustments while managing discovery. Courts can make attempts to provide substitues or alternatives for some or all of the lost information by ordering that the responding party produce additional witnesses for deposition, respond to additional interrogatories, or other substitutes the Court deems fit.

Note: These are recommendations that have been submitted for review by the Standing Committee on Rules and Practice and Procedure. Please consult the most up to date Federal Rules of Civil Procedure