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Agenda Book Provides Insights Into Possible Revisions to Proposed Rule Amendments Following Comment Period

Brittany Kauffman Posted in Rule One

The Agenda Book for the upcoming meeting of the federal Advisory Committee on Civil Rules (April 10-11, 2014) is now available online. The Agenda Book includes reports from the Duke and Discovery Subcommittees, along with the Subcommittees’ current proposed rule amendments and Committee Notes, taking into account the public hearing testimony and over 2000 comments submitted during the public comment period.

The Duke Subcommittee continues to recommend the majority of the proposed amendments, with a few revisions in rule texts and with considerably expanded Committee Notes. The Subcommittee recognized the substantial comments addressing the inclusion of the proportionality factors in the scope of discovery under Rule 26(b)(1), and in response rearranged the factors so that “the importance of the issues at stake” is now listed first rather than “amount in controversy.” The Subcommittee also recommends including a new factor drawn from Utah’s discovery rule amendments: “the parties’ relative access to relevant information.” The Committee Note has been revised to make clear that the change does not place a burden of proving proportionality on the party seeking discovery. The Duke Subcommittee has decided not to recommend decreasing the numerical limits in Rules 30, 31, 33, and 36. As for Rule 37(e), the Discovery Subcommittee recommends substantial revisions, including limiting the proposed rule to electronically stored information. These revisions are generally consistent with the discussion at IAALS’ Forum for Understanding and Comment on the Proposed Federal Rules Amendments in December, reflecting areas in which there was consensus at that event.