Cross-posted at WLF’s Forbes.com contributor page
Today, the Committee on Rules of Practice & Procedure (“Standing Committee”) of the Judicial Conference of the United States formally released a package of proposed amendments to the Federal Rules of Civil Procedure (“FRCP”) governing the pre-trial discovery process. As has been the case with past efforts to alter the FRCP, the process of preparing these changes has been painstakingly slow and mostly (and perhaps consciously) removed from public view. The six-month public comment period is a critical stop on this long and winding road.
Proposed Amendments. For the second time in less than a decade, the federal judiciary and litigants are pursuing FRCP changes aimed at controlling the explosion of electronically stored documents (aka “e-discovery”). A 2009 study by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System (“ACTL/IAALS study”) made the case that discovery had become an end unto itself, rather than a means to conduct litigation. A 2010 conference at Duke University addressed this report and the larger problems with the scope, burden, and cost of discovery and document retention.
From that conference and subsequent work by an Advisory Committee on Civil Rules arose a group of changes to the FRCP, including amendments to Rules 1, 26, and 37. The proposed amendments promise progress in addressing the scope of discovery and devising a uniform approach to sanctioning parties for willful failure to preserve documents. Bloomberg BNA published a good overview of the proposal.
Tackling Discovery Costs. The cost of pre-trial discovery has skyrocketed, and some litigants have used the high price of preserving, collecting, and producing electronic documents as a tactical weapon. In a WLF Legal Backgrounder, Hollingsworth LLP partner Rebecca Womeldorf wrote, “Discovery—once exclusively a means of obtaining information relevant to the legitimate end of fact finding—now indisputably provides the requester with court-assisted settlement leverage, irrespective of the merits.”
The Standing Committee’s proposed FRCP amendments somewhat fortify courts’ power to protect litigants from abusive cost-leveraging tactics. Some entities involved in the discovery rules reform process, such as Lawyers for Civil Justice,feel that these changes do not go far enough to reduce cost incentives for discovery abuse. We will delve a bit further into those concerns in a future Legal Pulse post.
Where to Comment and the Road to a Finish. The Judicial Conference Advisory Committee has posted the formal proposal here, which is also where the public can submit comments by February 15, 2014. After the comment period has ended, the Advisory Committee will reconvene, consider the public comments, and revise (or not revise) accordingly. That package will then be passed on to the Standing Committee, which, if it approves the changes, then sends it on to the full Judicial Conference. From there, the changes go to the Supreme Court, which can accept or reject them. If accepted, Congress then has six months to reject, modify, or take no action on the amendments. If Congress takes no action, the proposal becomes part of the FRCP in December 2015.
A simplified flowchart of the long and winding road of rules reform:
Public Comment → Advisory Committee → Standing Committee → Judicial Conference → Supreme Court → Congress → Final Rules