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Federal Rule Amendment Package Approved for Publication: An Important Step Forward

Brittany Kauffman Posted in Rule One

The Judicial Conference Standing Committee on Rules of Practice and Procedure (“Standing Committee”) this week approved a package of amendments to the Federal Rules of Civil Procedure for publication and public comment. The proposed amendments to Rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37 form a “package” of proposed rule changes that represent the culmination of several years of work on the part of the Civil Rules Advisory Committee. The package of amendments was developed in response to the themes that emerged from the Committee’s Conference on Civil Litigation at Duke University in 2010, including the need for increased cooperation, proportionality, and early and active case management. One of the most significant proposals is to revise Rule 26(b)(1) by incorporating proportionality directly as a limit on the scope of discovery. Additional amendments to Rules 30, 31, 33, and 36 add or reduce numerical limits on written discovery and depositions, while the proposed amendments to Rule 34 require more specificity in the responses to requests for production of documents. The proposed amendments to Rule 1 stem from the Advisory Committee’s belief, as stated in its May 8, 2013 Report to the Standing Committee (included in the Agenda Book for the June 3 meeting), that “[r]easonable cooperation among adversaries is vitally important to successful use of the resources provided by the Civil Rules.” While the Advisory Committee did not impose cooperation directly, the proposed amendments do make the parties share in the responsibility of achieving the Rule’s goals of a “just, speedy, and inexpensive determination of every action.”

The Standing Committee also approved for publication a proposed replacement for Rule 37(e) with the goal of providing a new uniform national standard for spoliation sanctions. The current Rule 37(e), adopted in 2006, limits sanctions for failure to preserve electronically stored information “lost as a result of the routine, good faith operation of an electronic information system.” Although the intent of this “safe harbor” provision was to provide certainty to litigants in the area of preservation, the result has been uneven application of the standard in courts across the nation. The new proposed Rule 37(e) replaces the prior rule with a uniform national standard for culpability that applies to all forms of discoverable information. The proposed Rule is the result of much discussion, debate, and revision, and it will be published along with five questions on which the public is invited to comment in an effort to focus on the issues that have been raised in this context. Bloomberg BNA’s summary of the Standing Committee’s meeting this week provides useful insights into the Advisory Committee’s inclusion of these questions, and other commentary during the meeting, while Thomas Y. Allman’s recent article provides a useful and thorough summary of the amendments now approved for publication.

The amendments will be published on or about August 15, 2013 and public comment will be accepted through February 16, 2014. The approval of the proposed amendments for publication marks an important step forward in the move from recommendations to reform of our civil justice system. We applaud these efforts, which are consistent with IAALS’ work through the Rule One Initiative to promote greater accessibility, efficiency, and accountability in the civil justice system.