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January 14, 2014

Call to Action: Public Support Needed for Proposed Changes to the Federal Civil Procedure Rules

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Bowman and Brooke's Discovery Coordination and eDiscovery Practice alerted clients to the proposed Amendments to the Federal Rules of Civil Procedure in August 2013, and we reported on the status and comments received on the proposed rules in November 2013. The deadline for comments is February 15, 2014. With just one month left, we are again urging those who have not yet submitted comments in support of the amendments to do so. In addition, we have an update on what our team has been doing to support the amendments.

Bowman and Brooke Lawyers Testify in Support of Amendments

Phoenix partners Janell Adams and Thomas C. Howard were honored to be selected to testify regarding the proposed amendments to the Federal Rules on January 9, 2014. The January 9th hearing before the Advisory Committee on Civil Rules ("Committee") was the second of three national hearings regarding the proposed changes (the first was held in Washington, D.C. on November 7, 2013, and the third will be held on February 7, 2014 in Dallas, Texas). Thirty-nine witnesses testified at the January hearing, with twenty supporting the proposed amendments. Ms. Adams and Mr. Howard joined in supporting the amendments.

Ms. Adams spoke from the perspective of someone whose practice will be directly impacted by the proposed changes to the Rules, as her daily practice includes preparing discovery responses, collecting and producing documents, and negotiating with plaintiffs' counsel regarding discovery disputes. The proposed changes to Rule 26, particularly the emphasis on proportional discovery, and the removal of the phrases "subject matter" and "reasonably calculated to lead to the discovery of admissible evidence," will properly limit discovery to "relevant" information. These changes will incentivize plaintiffs to work with defendants to identify the necessary information and documents, and encourage agreements to use technology assisted review or "TAR", as well as predictive coding. These tools will be essential to address the ever-expanding volume of data generated by large corporate defendants.

Although strongly supportive of the proposed amendments in general, Ms. Adams expressed concern that the proposal to add a requirement to Rule 34(b)(2)(C) that the responding party explain "whether any responsive materials are being withheld" could pose problems, particularly in cases where TAR or predictive coding are used to identify relevant documents. She noted that this is the only proposed change embraced by the American Association for Justice (formerly known as the Association of Trial Lawyers of America, or ATLA).

Ms. Adams also testified that the Federal Rules are ripe for change, rebutting testimony from opponents who argued that changing the rules to address the explosion in data was premature because technology is constantly improving. Ms. Adams argued that adopting the concept of proportionality will allow the Courts and the parties to evolve as technology evolves.

Mr. Howard supported the proposed changes as someone defending product manufacturers and working on discovery issues “from the trenches," coordinating discovery programs nationwide. He applauded the Committee's work to address the appropriate standards for sanctions for failure to preserve evidence, but urged that the scope of the duty to preserve discoverable materials be made uniform and predictable. Clearly articulated Federal Rules for preservation, and consequences for failure to preserve, would lead to more consistency across all jurisdictions.

The Committee's change to Rule 37(e), rendering it applicable to all evidence not just electronic evidence, makes sense, Mr. Howard noted. He voiced concerns, however, that the current proposed revision to Rule 37(e) could lead to inconsistent application. The proposed amendments to Rule 37(e) permitting sanctions for conduct that is "willful or in bad faith" (emphasis added) is problematic. Mr. Howard agreed with written comments from other commenters who suggested that "or" should be changed to "and" or alternatively to provide a definition for "willful" conduct in the context of Rule 37(e). Mr. Howard also urged the Committee to consider limiting the sanction for failure to preserve evidence available under proposed Rule 37(e)(1)(B)(ii); he argued that sanctions for failure to preserve evidence which "irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation" should be limited to tangible things.

Your Written Comments Are Needed

Although the live testimony before the Committee to date has been evenly balanced between proponents and opponents of the proposed amendments, the number of written comments has not been balanced. As noted in Bowman and Brooke's November 2013 communication to clients, the written comments submitted by opponents exponentially outnumber the comments submitted by proponents. We therefore urge our clients to submit a written comment to the Committee supporting the amendments. The comment can be as simple as one paragraph expressing support for the amendments to the Rules, and explaining that you believe they will make a difference for the better. The address to send comments to by mail is:

Committee on Rules of Practice and Procedure
Administrative Office of the United States Courts
One Columbus Circle, NE
Washington, D.C. 20544

Comments and supporting files also can be submitted electronically.

You may also contact the Rules Committee Support Office by telephone, 202.502.1820.

If you or your organization has questions regarding the January 9th hearing please contact Janell Adams or Tom Howard.  If you have questions about or need assistance with preparing a written submission in support of the proposed changes, please feel free to contact the attorney with whom you have a relationship at Bowman and Brooke, or anyone on the Discovery Coordination and eDiscovery Practice team.