Following Public Comment, Changes Recommended to the Proposed Amendments to the Federal Rules of Civil Procedure

Based on public comment, the Duke Conference and Discovery Subcommittees to the Advisory Committee on Civil Rules have recommended changes to the proposed amendments to the Federal Rules of Civil Procedure as previously published. 

Too numerous to be discussed in full detail here, some of the more notable recommendations for changes to the proposed amendments include: the withdrawal of proposed new or reduced limitations to interrogatories, depositions, and requests to admit; changes to the proposed new language of Rule 26(b)(1), including addition of a new factor relevant to determining a proper scope of discovery; the reduction of the time for service under Rule 4(m) to 90 days, rather than 60 as was previously proposed; and changes to the proposed Committee Notes for several of the at-issue rules. 

Perhaps most significantly, the Discovery Subcommittee recommends substantial changes to the proposed amendments to Rule 37(e) as published for public comment, including that the rule be limited to the failure to preserve ESI.  The Subcommittee also recommends that the proposed language be largely re-written and that the rule be divided into four parts. The first part (37(e)(1)) would focus on the “loss of information without any need to consider whether the loss caused prejudice” and would allow the imposition of measures “no greater than necessary” to cure that loss.  The second part (37(e)(2)) would put “a separate focus on curative measures designed to cure prejudice” and would allow, upon a finding of prejudice, the imposition of measures “no greater than necessary” to cure it.  The third part (37(e)(3)) would address the loss of information where “the party who failed to preserve information ‘acted with the intent to deprive another party of the information’s use in the litigation’” and would limit certain serious sanctions to that circumstance.  The fourth part (37(e)(4)) would identify factors for consideration “in applying Rule 37(e),” although it should be noted that the Subcommittee remains undecided as to whether the factors are better suited for the Committee Note, which itself is also subject to the Subcommittee’s recommendations for change.

Although the proposed revisions to Rule 37(e) have “evolved from the version published for comment,” the Subcommittee has indicated that “the basic approach remains the same.”  

Next Steps

The Advisory Committee on Civil Rules will meet in Portland, OR on April 10-11, 2014 to discuss the Subcommittees’ recommendations and to make final decisions regarding the proposed amendments, including whether to seek additional comment or to submit them to the Committee on Rules of Practice and Procedure (“the Standing Committee”) for further consideration.  The Standing Committee, upon receipt of the proposed amendments, may accept, reject, or modify the recommendations. In the case of substantial modification, the proposals may be returned to the Advisory Committee with appropriate instruction.  Once approved by the Standing Committee, the proposals will be submitted to the Judicial Conference which, upon its approval, will submit the amendments to the Supreme Court.  If approved by the Supreme Court, the rules will be transmitted to Congress for its consideration by May 1 of the year in which the amendments will take effect (likely 2015).  Absent action by Congress to reject, modify, or defer the rules, the rules will take effect on December 1st.

A copy of the Agenda Book for the Advisory Committee on Civil Rules’ Portland Meeting, containing all of the most recent recommendations to the proposed amendments to the civil rules, is available here.