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August 22, 2013

No Limits on Requests for Production: Proposed Changes to Federal Rules of Civil Procedure Leave a Door Open

Government Comment Period is Open Until February 15, 2014

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Update: The Amendments to the Federal Rules of Civil Procedure are now in effect. The Amended Rules apply to all federal cases filed after December 1, 2015, and to pending federal cases insofar as just and practicable. 

Click here to view and download a chart outlining the Amended Federal Rules, or contact one of our discovery lawyers.

On August 15, 2013, the much-anticipated proposed amendments to the Federal Rules of Civil Procedure (FRCP) were opened for public comment. We summarize the proposed amendments to the FRCP below and recommend that manufacturers involved in product liability cases provide comments in one critical area.

In general, the proposed amendments bring greater clarity and specificity to the Rules. They bring proportionality to the forefront of this complex arena.

At the same time, unlike the new limits to Rule 33 interrogatories and Rule 36 requests for admission, the amendments do not limit the number of Rule 34 requests for production. Interestingly, the Rules Committee specifically studied limiting the Rule 34 requests, but ultimately did not recommend any limitation.

Manufacturers involved in product liability cases will want to voice the need for a presumptive Rule 34 limit during the Rules Committee's comment period, as a reasonable limit on the number of Rule 34 requests would reduce fees and costs. We recommend that you click on the link provided at the end of this article and send the following comment to the Rules Committee:

I recommend the Committee limit the presumptive number of Rule 34 requests. The version of the Amendments released for public comment reveals that the Committee studied at length a presumptive limit of 25 Rule 34 requests but ultimately abandoned that limit. Even a reasonable limit of 50 requests would significantly reduce the attorneys' fees and costs expended responding to hundreds of requests for production in a single product liability case.

Beyond this concern, other proposed Amendments may well hasten litigation and reduce the costs of discovery. We summarize the proposed Amendments as follows:

Proposed Rule  Subject Matter Proposed Amendment
1 Cooperation

Encourages cooperation by adding the underlined text:

"[T]hese rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding."

4(m) Case management Shortens the time to serve the summons and complaint from 120 days to 60 days.
16(b)(2) Case management Cuts the time the judge must issue the scheduling order from 120 days after any defendant has been served (or 90 days after any defendant has appeared) to 90 days (or 60).
16(b)(3)(B)(v) Case management - Discovery Motions Explicitly permits judges to require a conference with the Court before service of discovery motions.
16(b)(3)(B)(iii) and 26(f)(3)(c) Case management - Discovery Motions Adds "preservation" of ESI to the permitted contents of scheduling orders.
26(b)(1) Scope of Discovery

Incorporates the limitations of present Rule 26(b)(2)(C)(iii) into the scope of discovery. Discovery must be:

"proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit."

After the phrase allowing discovery "of any matter relevant to any party's claim or defense," the amendment removes this text:

"including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter."

The Committee does not intend to preclude this discovery:

"Discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the rule text with these examples." (p. 266, Preliminary Draft of Proposed Amendments, link provided below.)

26(c)(1)(B) Allocation of expenses Explicitly provides authority to enter a protective order that allocates the expenses of discovery.

26(d)(2) [and 34(b)(2)(A)]

Cooperation Permits service of Rule 34 requests 21 days after service of the summons and complaint; the requests are considered served at the first Rule 26(f) conference.
30, 31 Depositions Reduces the presumptive limit on the number of depositions from 10 to 5, and the presumptive duration from 7 hours to 6.
33 Interrogatories Reduces the presumptive limit on the number of interrogatories from 25 to 15.
34(b)(2)(B) Producing Documents and ESI Requires that the grounds for objecting to a request be stated with specificity.
34(b)(2)(C) Producing Documents and ESI Requires that an objection "state whether any responsive materials are being withheld on the basis of that objection."
36 Requests for Admissions Creates a presumptive limit of 25 requests per party.
37(a)(2)(B)(iv) Sanctions Removes the "routine, good faith operation of an electronic information system" exception in exchange for a "uniform set of guidelines for federal courts," and applies them to "all discoverable information, not just ESI." (See proposed Rule 37 Committee Note, pp. 317-318, "Request for Comment, Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure" released for public comment, link provided below.)
37(e)(i)(A) Sanctions Permits additional discovery and attorney's fees caused by a failure to preserve.
37(e)(1)(B)(i) and (ii) Sanctions Permits sanctions or adverse-inference jury instructions "only if" the party's failure to preserve "caused substantial prejudice in the litigation and were willful or in bad faith; or irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation."
37(e)(2) Sanctions

Lists "factors to be considered in assessing a party's conduct" including:

(A) extent to which the party was on notice of the litigation
(B) reasonableness of efforts to preserve
(C) whether the party received a request to preserve
(D) the proportionality of the preservation efforts to the litigation
(E) whether the party timely sought the court's guidance on disputes about preserving discoverable information

The time period for public comment closes on February 15, 2014.

The proposed amendments, if approved, would become effective on December 1, 2015.


Download Amended Federal Rules Chart

The Amendments to the Federal Rules of Civil Procedure are now in effect. Click to view and download a chart outlining the Amendments to help you immediately integrate them into your discovery practice.

Need more help? Contact our Discovery Coordination and eDiscovery group today.