Proposed Amendments to the Federal Rules of Civil Procedure

Transcription

1 Proposed Amendments to the Federal Rules of Civil Procedure Mark Michels, Deloitte Discovery Frances Ho, Deloitte Discovery Deloitte Financial Advisory Services LLP

2 Disclaimer The oral presentation and this written material (collectively, the Materials ) contain general information only and Deloitte Financial Advisory Services LLP and its affiliates, are not, by means of these Materials, rendering accounting, business, financial, investment, legal, tax, or other professional advice or services. These Materials are not a substitute for such professional advice or services, nor should they be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified professional advisor. Deloitte Financial Advisory Services LLP and its affiliates shall not be responsible for any loss sustained by any person who relies on these Materials. 1 Footer 1

3 Rules Amendment Process

4 Initial Public Consultations on Discovery Rules Rules Amendment Process Dallas Law School Conference Dallas I Conference May, 2010 September, 2011 Dallas II Conference October, 2012 Standing Committee on Rules of Practice and Procedure January, 2013 Back to Standing Committee June, 2013 Back to Standing Committee June, 2014 United States Supreme Court Before May 1, 2015 Earliest effective Date December Civil Rules Advisory Committee November, 2012 Back to Advisory Committee April, 2013 Public Comment Period August, February, 2014 Back to Advisory Committee April, 2014 Judicial Conference of the United States September, 2014 United States Congress statutory time period to reject or modify 3 Footer

5 Key Dates August 15, 2013: Proposed amendments published for comment November 7, 2013: Washington, DC hearing January 9, 2014: Phoenix hearing February 2014: Dallas hearing February 15, 2014: Comment period closes 4 Footer

6 Duke Package Proposal

7 Duke Package Proposal: Introduction The 2010 Duke Conference was held on May 10 and 11, 2010 at Duke Law School in Durham, NC. The conference was held to discuss new research conducted by the Federal Judicial Centre and other material prepared by lawyers, judges, and academics of ideas for reducing cost and delay in civil litigation. At the conference, chaired by Judge Koeltl, there were three main themes: 1) Early and Active Judicial Case Management, 2) Proportionality, and 3) Cooperation among Lawyers. 6 Footer

8 Duke Package Proposal: Case Management Rule 4(m): Summons The proposal shortens the time to serve the summons and complaint from 120 days to 60 days. The court still has the duty to extend if the plaintiff shows good cause for the failure to serve within the specified time. The proposal also specifies that this amended rule does not apply to service of a notice under Rule 71.1 (d)(3)(a). This addition was added because of the concerns that shortening the time to serve will exacerbate the current problems with condemnation actions. Rule 16(b)(2): Time for Scheduling Order The proposal shortens the time that a judge must issue the scheduling order. Under the amended rule, the judge must issue the order within 90 days, instead of 120 days, after any defendant has been served with the complaint or 60 days, instead of 90 days, after any defendant has appeared. The Subcommittee initially proposed that the time should be reduced to 60 days after service or 45 days after an appearance. However, due to arguments that this amount of time is impossible to adequately prepare for a productive scheduling conference, the Subcommittee agreed to relax its proposal. 7 Footer

9 Duke Package Proposal: Case Management Rule 26(d)(1): Early Rule 34 Requests The proposal adds new Rule 26(d)(2) which allows a party to deliver Rule 34 requests to another party more than 21 days after the summons and complaint are served even though the parties have not yet had a required Rule 26(f) conference. The amended rule provides an opportunity to facilitate the Rule 26(f) conference by providing a more focused discussion of Rule 34 requests. 8 Footer

10 Duke Package Proposal: Case Management Rule 16(b)(1): Actual Conference The amended rule emphasizes the value of direct communication among the parties and court when issuing a scheduling order by striking the language by telephone, mail, or other means. The committee wanted to stress that a conference should be held face-to-face, by telephone, or by other means of direct communication. Rules 16(b)(3), 26(f): Additional Subjects The amended rule adds three items to the list of permitted contents: 1) The order may provide for preservation of electronically stored information 2) The order may include agreements reached in a court order under Evidence Rule 502 3) The order may direct that before filing a motion for an order relating to discovery, the movant must request a conference with the court. 9 Footer

11 Duke Package Proposal: Proportionality Rule 26(b)(1): Proportionality by adopting Rule 26(b)(2)(C)(iii) Cost-Benefit Analysis. The amended Rule 26(b)(1) limits the scope of discovery to what is proportional to the needs of the case. The considerations to be made regarding proportionality are moved from Rule 26(b)(2)(C)(iii). The amended considerations under Rule 26(b)(1) include: 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. The current rule allows the court, for good cause, to order discovery for any matter relevant to the subject matter involved in the action. The amendment proposes that discovery should be limited to the parties claims or defenses. Such discovery may show support for new claims or defenses, in which case, an amendment of the pleadings is allowed. 10 Footer

12 Duke Package Proposal: Proportionality Rule 26(c): Allocation of Expenses The amendment to the rule that the court may enter a protective order that allocates the expenses of discovery simply makes this power explicit in the proposed rule, as opposed to implicit under the current rule. Rule 30, 31, 33, and 36: Presumptive Numerical Limits The amended rules limit the number of depositions from 10 to 5, and reduces the duration of depositions from 1 day to 6 hours. Research by the Federal Judicial Centre found that limiting depositions to 5 will not have an effect in most cases. The committee also emphasized that limiting the number to 5 does not imply that parties have to file motions and orders in every case that deserves more than 5 depositions - parties can agree on a greater number of deposition. The reduction to 6 hours is intended to reduce the burden of a 7 hour deposition yet still allow for a complete examination. The amended rules also reduces the number of interrogatories from 25 to 15. The committee believes that 15 will meet the needs of most cases. There is no change to the court s power to increase the number of interrogatories. The purpose of this amendment is to encourage the parties to be more efficient 11 Footer

13 Duke Package Proposal: Proportionality Rule 30, 31, 33, and 36: Presumptive Numerical Limits (cont.) Rule 36 is amended to limit requests a party can serve on another party to 25. The committee emphasizes that the proposal to limit the number of requests does not prohibit a greater number of requests, if required by the case. Rule 34: Objections and Responses 34(b)(2)(A) is amended to include Rule 26(d)(1)(B). Specifically, the rule is amended to state that the time to respond to a Rule 34 request delivered before the parties Rule 26(f) conference is 30 days after the first Rule 26(f) conference. 34(b)(2)(B) is amended to emphasize that objections to Rule 34 requests must be made with specificity and must state the copies will be produced. 34(b)(2)(C) is amended to require that an objection state whether any responsive materials are being withheld on the basis of that objection. 12 Footer

14 Duke Package Proposal: Cooperation Rule 1: Scope and Purpose Rule 1 is amended to emphasize that parties share the responsibility with the court to secure the just, speedy, and inexpensive determination of every action and proceeding. The proposed amendment is intended to encourage lawyers and parties to cooperative and thus reduce the costs that is increased when there is adverse behavior among the parties. 13 Footer

15 Federal Rules of Civil Procedure 37(e): Failure to Provide Electronically Stored Information

16 Federal Rules of Civil Procedure Rule 37(e): Failure to Provide Electronically Stored Information Objective of Proposed Amendments to Rule 37(e): To cut costs of preservation by developing a uniform standard for imposing sanctions for when a party fails to preserve discoverable information. New Rule 37(e): (1) Curative Measures; Sanctions. If a party failed to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation, the court may (A) permit additional discovery, order curative measures, or order the party to pay the reasonable expenses, including attorney's fees, caused by the failure; and (B) impose any sanction listed in Rule 37(b)(2)(A) or give an adverse-inference jury instruction, but only if the court finds that the party's action: (i) caused substantial prejudice in the litigation and were willful or in bad faith; or (ii) irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation. 15 Footer

17 Federal Rules of Civil Procedure Rule 37(e): Failure to Provide Electronically Stored Information Factors to be considered in assessing a party's conduct. The court should consider all relevant factors in determining whether a party failed to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation, and whether the failure was willful or in bad faith. The factors include: extent to which the party was on notice that litigation was likely and that the information would be discoverable; the reasonableness of the party s efforts to preserve the information; whether the party received a request to preserve information, whether the request was clear and reasonable, and whether the person who made it and the party consulted in good faith about the scope of preservation; the proportionality of the preservation efforts to any anticipated or ongoing litigation; and whether the party timely sought the court s guidance on any unresolved disputes about preserving discoverable information. 16 Footer

18 Questions for Invitation to Comments

19 Questions for Invitation to Comments 1) Should Rule 37(e) be limited to sanctions for loss of electronically stored information or should the rule also include other discoverable matter, including but not limited to tangible things? 2) Should Rule 37(e)(1)(B)(ii) be retained in the rule and does it provide important flexibility to the rule? This rule is intended to address the possibility that a party s failure to preserve evidence irreparably deprives the other side of meaningful opportunity to present or defend against a claim absent a finding of willfulness or bad faith. Suggestions have been made that limiting the rule to loss of electronically stored information makes (B)(ii) unnecessary. 3) Should the current Rule 37(e) be retained in the rule? As noted in the Committee Note, the amended rule protects the current rule. 4) Under Rule 37(e)(1)(B)(i), should there be an additional definition of substantial prejudice to include factors such for the court to consider such as availability of reliable alternative sources of the lost or destroyed information, and the importance of the lost information? 5) Under Rule 37(e)(1)(B)(i), should there be an additional definition of willfulness or bad faith, and if so, what should be included in that definition? 18 Footer

20 References

21 References Committee on Rules of Practice and Procedure June 3-4, Books/Standing/ST pdf#pagemode=bookmarks 20 Footer

22 About Deloitte Deloitte refers to one or more of Deloitte Touche Tohmatsu Limited, a UK private company limited by guarantee, and its network of member firms, each of which is a legally separate and independent entity. Please see for a detailed description of the legal structure of Deloitte Touche Tohmatsu Limited and its member firms. Please see for a detailed description of the legal structure of Deloitte LLP and its subsidiaries. Certain services may not be available to attest clients under the rules and regulations of public accounting. Member of Deloitte Touche Tohmatsu Limited