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A Tour de Force: Draconian Proposed Changes To The Federal Rules Of Civil Procedure Withdrawn

Congratulations—we marshaled our resources well and were successful! Our collective voices challenging the proposed changes to the Federal Rules of Civil Procedure were heard by the Advisory Committee on Civil Rules and resulted in significant changes to the original proposals. This is precisely how the rulemaking process should work.

As you know, the Judicial Conference of the United States proposed to change the Federal Rules of Civil Procedure to limit discovery significantly with the result that plaintiffs in federal court actions, including your clients, would be deprived of access to essential information. The proposed rules sought to reduce the presumptive number of depositions to five from ten, each deposition to one day of six hours instead of seven hours, the presumptive number of interrogatories to 15 from 25, and to create a presumptive limit of 25 requests for admission where none previously existed.

Two additional proposed rules regarding proportionality and spoliation also would have affected plaintiffs’ ability to obtain discovery of evidence asymetrically in employers’ hands and make it harder to obtain a remedy for destruction of evidence.

• Proposed Rule 26(b) would have eliminated long-standing language stating that information reasonably calculated to lead to the discovery of relevant information is discoverable.Instead, the revised Rule 26 enhanced the importance and role of proportionality and specifically required consideration of, first and foremost, the amount in controversy, and then the importance of the issues, the parties’ resources, the importance of the discovery and whether the burden or expense of production outweighed its likely benefit.
• Proposed Rule 37(e) regarding the failure to make disclosures or to cooperate in discovery would have applied to all discoverable information, not just electronically stored information (ESI).Additionally, the standard to obtain a curative instruction or sanctions for spoliation or destruction of evidence would have been heightened to requiring proof of willfulness or bad faith.

As required by the rulemaking process, a six-month public comment period opened on August 15, 2013 and closed on February 18, 2014. More than 2,000 written comments were submitted from diverse individuals and entities, including governmental agencies, corporations, law firms, non-profit organizations, academics and federal judges. The Advisory Committee held public hearings during the comment period in Washington, D.C., Phoenix, and Dallas, taking testimony from 125 witnesses representing various perspectives. NELA members Joseph M. Sellers, John F. Karl, Stephen Z. Chertkof, Jennifer Klar, John P. Relman, and Nicholas Woodfield testified in Washington, D.C. Kathryn Burkett Dickson and Joseph D. Garrison testified at the Phoenix hearing on behalf of NELA. NELA member Jocelyn D. Larkin also testified in Phoenix. NELA members Brian P. Sanford and John W. Griffin testified at the Dallas hearing. NELA submitted comprehensive written comments in March 2013 and again in February 2014.    

The Advisory Committee held a final public hearing in Portland, Oregon, on April 10 and 11 to announce the result of their consideration of the written comments and oral testimony and approval of the rules to be submitted to the Rules Standing Committee appointed by the Judicial Conference. NELA’s Federal Rules Task Force Chair Joseph D. Garrison attended this hearing. In a major victory for plaintiffs’ lawyers, the Committee announced that they unanimously withdrew the presumptive limit reductions on depositions, interrogatories and requests for admission, leaving those rules intact. Judge John G. Koeltl noted that the presumptive limit proposals received great criticism “to put it mildly.” Mr. Garrison reported that he believed that the Committee reacted very reasonably and appropriately to the plethora of comments it received. He further noted that this is the second time the Committee has revised a rules proposal that was, at first, harmful to the plaintiffs' bar, the first time being when the point-counterpoint process was removed from Rule 56. Mr. Garrison believes that these revisions show that the Advisory Committee members have an open mind and act in good faith.

Regarding Rule 26(b)(1), the Committee remained committed to adding a proportionality test regarding the scope of discovery. They made two significant adjustments to address concerns of the plaintiffs’ bar when defendants claim that the discovery requested is disproportionate to the stakes in the case. The order of the factors were rearranged so that the first one is “the importance of the issues at stake in the action,” having supplanted “amount in controversy.” The Committee Note also now instructs that cases with small damages may concern significant substantive issues. The Note specifically identifies employment practices as an example of a case where the social value may outweigh the monetary value. The Advisory Committee also added as a factor that courts should consider “the parties’ relative access to relevant information,” thus accounting for the fact that evidence is often asymmetrically in the hands of defendants.

Rule 37(e) regarding spoliation received substantial revision. It once again is limited to ESI only. The rule also now relies on a negligence standard to obtain most curative measures upon a showing of prejudice to the other party. Upon a finding of intent to deprive, sanctions may be imposed. The revised Rule gives the trial court judge substantial discretion in determining the appropriate curative measure or sanction under the circumstances.

The 580 page briefing book compiling and analyzing the comments to the proposed rules prepared by the Advisory Committee can be found at: http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2014-04.pdf.

We would like to thank all of the NELA members and Affiliates that joined in this effort by testifying, submitting written comments, and spreading the word. We are particularly grateful to the members of our Federal Rules Task Force, who devoted countless hours to this important endeavor and protecting the interests of workers and their advocates: Joseph D. Garrison, Chair; Kathryn Burkett Dickson, Herbert Eisenberg, Margaret A. Harris, Jonathan J. Margolis, and Ellen J. Messing. Congratulations again!

—Roberta L. Steele, NELA Program Director