Proposed Changes to FRCP

Transcription

1 CHEAT SHEET Expedite case management. This change will require greater advanced planning for a potential plaintiff. Streamline preservation and production of documents. These revisions will help clarify expectations and standards regarding when parties must preserve information,and the implications of failing to meet obligations. Limit scope of discovery. The recommended revisions to this rule are intended to add the concept of proportionality in discovery. Improve process. To effectively manage litigation under the new rules, develop a process that reflects on successes and shortcomings. Proposed Changes to FRCP More Efficiency fo

2 Significant changes to the US Federal Rules of Civil Procedure (FRCP), the rules that govern procedure in federal actions, may soon take effect. On Aug. 15, 2013, the Judicial Conference s Advisory Committee on Civil Rules approved proposed amendments to the FRCP. Following the public comment period that took place between Aug. 15, 2013, and Feb. 18, 2014, the Civil Rules Advisory Committee recently approved the proposals, and submitted them to the Standing Committee for review. On May 29 and 30, 2014, the Standing Committee approved the revised amendments. They will then be reviewed by the Judicial Conference, the body that makes policy decisions for the federal courts, the US Supreme Court and Congress. If the proposed new rules are adopted and officially enacted, they could be incorporated into the FRCP and become effective on Dec. 1, r Civil Procedures By Olga V. Mack, Sara B. Poster and Tom Spaulding ACC DOCKET OCTOBER

3 PROPOSED CHANGES TO FRCP MORE EFFICIENCY FOR CIVIL PROCEDURES The proposed amendments, which would substantially change a number of Federal Rules of Civil Procedure, fall into three main categories: 1) amendments to expedite case management, particularly in the early stages of litigation; 2) modifications aimed at enhancing parties efforts to preserve and produce documents; and 3) changes to streamline the scope of discovery. If enacted, the amendments would presumably have the collective effect of setting clearer parameters for the handling of federal cases and sharply decreasing discovery disputes to lower litigation costs and create greater efficiency in the resolution of federal actions. At least some and potentially all of the proposed amendments may be adopted. Therefore, practitioners should now be considering the kinds of changes that will need to be made in light of the modified rules and ways to prepare for them. Specifically, the expedited nature of early case management, enhanced efforts to preserve and produce documents, and streamlined discovery will require more planning by both potential plaintiffs and potential defendants before litigation is filed and at the outset of an action. To this end, identifying, documenting and regularly reviewing your organization s key practices, policies, stakeholders/ decision-makers and documents should become a routine procedure to effectively prepare for litigation under the proposed rules. Developing and using centralized crisis management practices and litigation tracking forms will also provide even greater benefits to your organization should the amendments take effect. The following summarizes the key changes that have been proposed, the effects these changes will have on federal practice and, in particular, implications for in-house counsel from various organizations. Expedited case management The first category of proposed changes aims to expedite parties and courts handling of cases at the inception of litigation. The following changes have been proposed: Expedited service of summons Rule 4(m) The proposed revision to Rule 4(m) would reduce the time period for serving the defendant from 120 to 60 days. 1 As with the current rule, the action would be susceptible to dismissal if service has not been effected by the 60-day deadline. This change will require greater advanced planning for a potential plaintiff. Should this rule take effect, a clear and thorough game plan and timeline will be a critical part of the litigation strategy at the inception of the action to make sure that the service of summons is properly completed. Similarly, potential defendants will need to think about their litigation strategy earlier on in the life of a new case. In planning for these changes, organizations should maintain an upto-date database of all active insurance coverage both directly purchased and indirectly obtained (e.g., a benefit of a contract). Doing so will help organizations ensure that they pursue all rights and benefits to which they may be entitled under the policies. For example, a current insurance database will facilitate an organization s efforts to notify insurance carriers in a timely manner, involve key stakeholders, coordinate its defense and conduct timely internal investigations. Serial litigants can create efficiency and reduce risk by taking advantage of cross-matter management strategies with their ediscovery team. Maintaining a master repository of processed custodian data in a review platform allows quick access to information when new matters come up, allowing counsel to gauge risk/opportunity quickly and easily. Custodian data can be repurposed across multiple cases in which they are involved, limiting the time and expense of collecting, processing and hosting data from scratch. Attorney teams can also take advantage of the insight that comes along with having access to past responses, confidentiality, attorney notes and privilege decisions on the same data set(s). Quicker issuance of scheduling order Rule 16(b)(2) Rule 16(b)(2) concerns the court s issuance of a scheduling order governing the logistics of the case at the inception of litigation. The proposed amendment to this rule requires the judge to issue a scheduling order either within 90 days after any defendant has been served Olga V. Mack (@OlgaVMack) is a startup lawyer who enjoys advising her clients to success and growth. Currently assistant general counsel at Zoosk, Inc., a San Francisco-based online dating startup, she previously worked at Visa, Inc., Pacific Art League of Palo Alto and Wilson Sonsini Goodrich & Rosati. olgav.mack@gmail.com Sara B. Poster is a litigation attorney with Cozen O Connor in the firm s Los Angeles office. Her practice focuses on complex commercial dispute resolution. sara.poster@gmail.com Tom Spaulding is a senior solutions consultant with Inventus and has over seven years experience helping corporations and law firms mitigate the risk and cost associated with the discovery process. tspaulding@inventus.com 84 ASSOCIATION OF CORPORATE COUNSEL

4 PROPOSED CHANGES TO FRCP MORE EFFICIENCY FOR CIVIL PROCEDURES or 60 days after any defendant has appeared, whichever is earlier, unless the court finds good cause for delay. 2 The main effect of this amendment would be reduced delay at the outset of litigation. In order to adapt to this change, organizations both potential plaintiffs and potential defendants should have a clear procedure for managing media, customers and key relationships (including notifying and managing relationships with applicable regulators) relatively early in a case. Managing these relationships and pre-screening outside help (e.g., legal assistance, vendors and investigators) at an early stage will become increasingly important as parties begin conducting discovery and filing motions more promptly following the filing of an action. Corporations with significant case loads have a number of options when addressing ediscovery as an organization by either insourcing, outsourcing or taking a hybrid approach. Insourcing requires the purchase and licensing of enterprise software and the personnel qualified to run the department. More commonly, a hybrid approach is taken. One type of hybrid approach internalizes a portion of the process collections and early case assessment, for example and outsources past a certain stage or if a matter exceeds an internal threshold. Another hybrid model is purchasing software and outsourcing the labor and expertise through a managed service agreement with a vendor. Other organizations outsource the entire process, partnering with vendors to manage the ediscovery lifecycle and establishing repeatable and defensible protocols. Cost and risk are major factors in determining the best methodology for your organization. Regardless of where your company falls in the spectrum, it can benefit from establishing relationships with pre-qualified long-term ediscovery vendors familiar with the client s data and ready to assist quickly, as needed. Early communication between the parties Rule 16(b)(1)(B) Rule 16(b)(1) likewise deals with the logistics for preparing a scheduling order at the outset of an action. The recommended revision to Rule 16(b)(1)(B) would delete the language in the rule allowing the judge to issue a scheduling order following communication with the parties by telephone, mail or other means, and it would require the parties to instead communicate directly at the scheduling conference. 3 Such direct communication may take place in person, by phone or by electronic means. Based on the Advisory Committee s belief that [a] scheduling conference is more effective if the court and the parties engage in direct simultaneous communication, 4 the proposal is intended to enhance the effectiveness of scheduling conferences by minimizing delay and misunderstandings. 5 Counsel can prepare and have an advantage before the meetings through early case assessment (ECA) efforts to guide a litigation strategy. Collecting, sampling and reviewing custodian data in software tools can greatly assist. Gaining transparent access into data sets early on in the case can prove vital in determining an effective case strategy. More inclusive scheduling order and privilege provisions Rule 16(b)(3)(B) and 26(f)(3)(D) Rule 16(b)(3)(B) provides the parameters for the contents of a scheduling order under Rule 26(f). The proposed revision to Rule 16(b)(3)(B) would allow parties to cover additional subjects in the court s scheduling order. 6 Specifically, parties would be permitted to include in a scheduling order discovery plan provisions governing the preservation of electronically stored information and agreements pursuant to Federal Rule of Evidence (FRE) 502, which concerns the effect of disclosing attorney-client privileged or work product communications or information. The revision The recommended revision to Rule 16(b)(1)(B) would delete the language in the rule allowing the judge to issue a scheduling order following communication with the parties by telephone, mail or other means, and it would require the parties to instead communicate directly at the scheduling conference. also proposes allowing a scheduling order to contain a clause requiring parties to request a conference with the court before filing discovery motions. As the Advisory Committee notes indicate, such conferences are favored by many judges for their effectiveness at resolving discovery disputes more quickly and efficiently, and at a more reduced cost than motion practice. 7 Having an effective plan to investigate and follow up with third parties may help to meet the requirements of the new rules. Managing numerous moving parts and facilitating information collection, especially that which the company does not control, will be key to effectiveness under the proposed rules. Moreover, specific and detailed information will be required to effectively address and manage the more comprehensive orders that the new rules propose. Similar to the amendment to Rule 16(b)(3) regarding privileges, proposed Rule 26(f)(3)(D), which governs disclosure of information in litigation, provides that the discovery plan must include a statement of the parties views and proposals on claims of privilege, including whether to ask the court for an order under FRE 502. Under these amended rules, it will become increasingly difficult to 86 ASSOCIATION OF CORPORATE COUNSEL

5 simply react to new litigation or follow a wait-and-see approach. It will become more important than ever to have in place clear protocols for quickly retrieving and managing records and anticipating the privilege issues associated with those documents. To this end, organizations should consider placing more emphasis on using sophisticated document collection and sorting tools, conducting periodic employee training regarding the use of those tools, and regularly inventorying all the organization s assets and documents. Organizations may also wish to expedite their efforts with respect to litigation hold requests. Should the amended rules be enacted, having a litigation hold memorandum ready at all times will be particularly beneficial, as will a plan for following up on the statue of internal records requests and investigations, and updates to the scope of those requests. In addition, having practices in place to timely notify all stakeholders and other key personnel of these efforts will help facilitate parties efforts to quickly launch their litigation strategies. Legal hold software is available in the cloud or deployed behind a firewall that attempts to automate and streamline the legal hold process, allowing for greater tracking and defensibility. The software allows corporations and IT visibility into the matters custodians are associated with and whether they ve acknowledged a hold. The software also generates reminders and notifies when a hold has been released. The program can also be used to alert the appropriate individuals in IT, Legal or Risk Management of impending departures that may have preservation implications. Streamlined preservation and production of documents The second category of amendments relates to parties duties to preserve and produce discoverable documents. Aimed at improving the discovery process and reducing discovery disputes, the following revisions would help clarify expectations and standards regarding when parties must preserve information, parties actual production obligations and the implications of failing to make required productions. Heightened focus on preservation of documents Rule 16(b)(3) B(B)(iii) and 26(f)(3)(C) As previously explained, proposed Rule 16 provides that parties may also include in the scheduling order an item regarding the preservation of electronically stored information. Proposed Rule 26(f)(3)(C) goes a step further and requires the discovery plan contained in the Rule 26(f) Report to include the parties proposals on preservation of electronically stored information. These recommendations are based on the growing acknowledgement of the prevalence and significance of such forms of information in litigation and parties obligations to preserve that information to the extent it may be discoverable. The proposed rules make knowing what information the organization has, the format of that information, and the chain of custody of the material even more important in case management. Organizations should regularly review their inventorying practices, their physical and electronic document databases, and their policies for maintaining those records as precautionary measures in the event litigation is filed. These activities should include engaging with IT personnel, risk management employees and vendors to develop a comprehensive understanding of the organization s practices and abilities before documents ever need to be retrieved in the context of a newly filed action. A data map maintained between IT personnel, risk management and legal detailing where data resides within an organization can help proactively identify sources of electronically stored information in the event of a litigation or regulatory matter. In-house counsel and IT should pay particular attention to service-level agreements with cloud based services in order to circumvent potential time and expense pertaining to the preservation and retrieval of materials kept in the cloud. International privacy laws can also come into play depending on the physical location of the data. Corporate counsel also face the challenge of bring-your-own-device (BYOD) policies. A recent Gartner ACC DOCKET OCTOBER

6 PROPOSED CHANGES TO FRCP MORE EFFICIENCY FOR CIVIL PROCEDURES 21 days after the receiving party was served with summons and the complaint to serve these requests. The 30- day time period for responding to these requests, however, would not start until after the Rule 26(f) conference (i.e., the requests are deemed served at the time of the conference). 9 Under the current rule, no requests for production may be served prior to the Rule 26 conference. The goal of this revision is to encourage more meaningful and focused discussions at the conference. 10 Relatedly, the current Rule 26(d)(2), which permits parties to use discovery methods in any sequence absent a court order, would be re-numbered to Rule 26(d)(3). The rule would likewise be amended to allow parties to stipulate to specific sequencing in discovery. Under proposed Rule 34(b) (2)(B), a party must state in its response to requests for production the grounds for any objection with specificity. Though the current rule provides for the assertion of objections, it does not explicitly state the objections must be made with specificity. survey estimates that by 2017 half of employers will require employees to use their own devices. 8 The rise in personal device usage puts considerable pressure on corporate security, IT and legal teams. BYOD policies and strategies vary considerably among organizations. Having workrelated data stored on an accessible server or cloud platform can mitigate the need to individually collect from the personal devices. Container programs with an added layer of encryption exist to segregate work functionality from personal use. Expedited requests for production Rule 26(d)(2) The amendments include a newly formulated Rule 26(d)(2), which would allow parties to begin serving requests for production of documents before the parties hold their Rule 26(f) conference. However, a party must still wait Clarified discovery responses regarding production Rule 34(b)(2) Rule 34 governs production of documents and other tangible items, as well as inspections. Under proposed Rule 34(b)(2)(B), a party must state in its response to requests for production the grounds for any objection with specificity. Though the current rule provides for the assertion of objections, it does not explicitly state that objections must be made with specificity. The amendment would eliminate any doubt that less specific objections might suffice. The modified rule would further include a provision permitting the responding party to indicate whether it will produce the materials or allow inspection. Under the proposed rule, responses must also include a reasonable date for production. If no reasonable date is stated, the requesting party may specify the timeline for production. If a party seeks to produce documents according to a phased, rolling production, it should state the start and end dates of that production in its response. The proposed amendment to Rule 34(b)(2)(C) requirement 88 ASSOCIATION OF CORPORATE COUNSEL

7 the response to indicate whether documents are being withheld on the basis of the stated objections. This amendment is intended to eliminate the uncertainty that often exists when a responding party asserts several objections and, nonetheless, produces certain information, leaving the requesting party uncertain as to whether any responsive information has been withheld based on the objections where other material has been produced. Aimed at streamlining the discovery process, these modifications seek to reduce ambiguities and delays that are often associated with physical productions. As the Advisory Committee Notes explain, the goal is reducing the potential to impose unreasonable burdens by objections to requests to produce. 11 These proposed modifications to discovery standards highlight the importance of setting expectations early on with regard to how your organization approaches responding to discovery. This will require that you regularly discuss and educate your colleagues about the desired outcome and objectives, which should be consistent with the organization s overall litigation philosophy and concerns that are specific to the case at hand. In addition, it is prudent to consider the importance of the case to your organization. Not every case is equally important; thus, your discovery strategy should take into account the significance and priority of the case in relation to the costs and resources required to fully comply with your obligations to provide information and material to the opposing party or parties. Again, early case assessment methods and software tools can help determine risk, whether to settle or litigate, and determine the broader strategy. The new rules would impose more stringent requirements in connection with discovery and seek to reduce much of the gamesmanship that currently takes place. In evaluating the importance of the case early on, you will be better situated to decide whether these more onerous requirements are worth the effort they will entail. If not, the organization can pay greater attention to settlement options in order to reduce these expenses. Clarified remedies for failure to produce Rule 37 Increasing concerns have been raised about the burdens on potential and actual litigants to preserve information, especially where litigation has not yet commenced. 12 Federal courts across the nation have issued inconsistent rulings regarding the extent to which parties must preserve information to avoid sanctions. 13 This has made costly and potentially unnecessary preservation methods seem vital in the face of the possibility that sanctions will be imposed for the inadvertent failure to preserve material that is later sought in discovery. 14 The proposed amendments to Rule 37, which concerns the failure to make disclosures or otherwise cooperate in discovery, address these concerns. They substantially change the rule by creating uniform guidelines that would apply to all forms of discoverable information, whether electronically stored or otherwise. It is designed to clarify that parties to federal actions who make reasonable efforts to preserve information should not be susceptible to serious sanctions in the event that information is lost. 15 The amendment to Rule 37(a)(2)(B) (iv) makes clear that a party is permitted to move for an order to compel production if another party fails to produce documents. The current version of the rule specifies only that a motion to compel is appropriate where the opposing party fails to respond that inspection will be permitted or fails to permit inspection. The Advisory Committee Notes explain that this amendment is intended to reflect the standard practice of producing copies of material, as opposed to simply permitting inspection. 16 Amended Rule 37(e)(1) completely revamps the current rule. The current Rule 37(e)(1) provides the following: Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. The proposed Rule 37(e)(1) would state as follows: Failure to Preserve Discoverable Information. (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 actions: (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. Accordingly, the amended Rule 37(e) would apply to all forms of information that is discoverable, as opposed to the current version of the rule that pertains only to electronically stored information. Under subdivision (e)(1) (A), the court can take measures aside from imposing sanctions where a party failed to preserve information it should have preserved. 17 Subsection (e)(1)(b) provides greater clarity that sanctions can indeed be appropriate. The new rule ACC DOCKET OCTOBER

8 PROPOSED CHANGES TO FRCP MORE EFFICIENCY FOR CIVIL PROCEDURES provides that sanctions may only be imposed for willful or bad faith (and not negligent) conduct unless the limited circumstances under subsection 37(e)(1)(B)(ii) are established. To satisfy the irreparably deprived standard under this subsection, a high burden must be met. Examples of situations satisfying the standard would include a case in which a product that allegedly caused the injury in question has been lost and where there are no alternative forms of evidence such that the requesting party is unable to meaningfully litigate its case. 18 The proposed revisions to Rule 37(e) also add subsection (e)(2). This subsection would provide that courts may consider all relevant factors in evaluating a party s conduct in failing to produce information. 19 The proposed rule would also clarify the analysis used by courts to determine if curative measures, sanctions or no relief is warranted where discoverable information was lost or destroyed. Organizations with well documented and well executed document retention/destruction plans can benefit from the revised rules, which reduce the threat of sanctions. Additionally, many companies are automating information governance through technology, using software to reduce data, implement schedules, categorize data and defensibly delete data. With the exponential growth of electronic data, corporations are looking ACC EXTRAS ON Discovery ACC Docket The Emerging Role of Office of Technology Counsel (May 2007). frcp_may07 Asian Briefings Westward Expansion of Data Privacy Laws and Blocking Statutes to Asia: Impact on US Litigation and Discovery Requests (Nov. 2013). to reduce the amount of data and keep only what is required. Manual retention and deletion plans were difficult to administer, and many companies fell into policies that essentially kept everything, which not only added to the expense of discovery, but also incurred considerable exposure and risk. Software and services are available that enable organizations to reduce redundant, obsolete and trivial (ROT) data through de-duplication, filtering and analytics. Analytics technology and techniques such as predictive coding can also used to make decisions relating to classification and defensible deletion of documents. Clarified authority for issuance of protective orders Rule 26(c)(1)(B) Proposed Rule 26(c)(1)(B) acknowledges the court s authority to issue a protective order allocating discovery expenses among the parties. Though courts currently have this authority, such authority has been challenged. The amendment has been proposed to prevent parties from challenging this authority. 20 Press Release In-house Bar Files Comment Letter Aimed to Reduce the Excessive Costs and Burdens of FRCP Discovery Rules (Feb. 2014). ACC HAS MORE MATERIAL ON THIS SUBJECT ON OUR WEBSITE. VISIT WHERE YOU CAN BROWSE OUR RESOURCES BY PRACTICE AREA OR SEARCH BY KEYWORD. The key to succeeding under these new discovery rules will likely be partnering with colleagues internally, particularly those with authority to make business decisions, to ensure that the organization s business strategies can facilitate the litigation. You will no doubt become a more effective litigation manager when you are aligned with the objectives of your organization. This global focus should also make you more effective in helping outside counsel comply with new discovery requirements and tell a coherent story about your organization. Depending on the litigiousness of your organization, you ought to consider the efforts required to create a preparedness and response team that can generate and execute best practice(s) supporting the objectives of your organization. You may also wish to actively assist outside counsel in gathering facts and documents and interviewing your employees. Moreover, depending on the size, exposure and importance of the case, consider working with outside counsel closely in reviewing documents that outside counsel drafted, and consider participating in discovery and settlement activities. Limited scope of discovery Proportionality Rule 26(b)(1) Rule 26(b)(1) sets forth standards regarding the general scope of discovery in federal actions. The recommended revisions to this rule are intended to add the concept of proportionality in discovery to the rule. Under the present version of Rule 26(b)(1), a party is entitled to obtain discovery 90 ASSOCIATION OF CORPORATE COUNSEL

9 HAVE A COMMENT ON THIS ARTICLE? VISIT ACC S BLOG AT The presumptive number of depositions would be limited to five for plaintiffs, defendants or third-party defendants under Rules 30 and 31, with the length of a deposition limited to a total of one day consisting of six hours. The parties may exceed these limits by stipulating or obtaining a court order. regarding any non-privileged matter that is relevant to any party s claim or defense including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. The current rule also provides that information need not be admissible at trial in order to be discoverable as long as it appears reasonably calculated to lead to the discovery of admissible evidence. Parties and courts have long relied on this language as a basis for maintaining a broad scope of discovery, which has led to what is commonly known as fishing expeditions in discovery. Under the proposed revisions to this rule, these standards would be clarified considerably. The rule would be revised to require discovery to be proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. The proposed amendment also deletes the provision permitting the court to order discovery of any subject matter relevant to the action upon a showing of good cause. Further, the recommendation seeks to modify the provision for discovery of relevant, but inadmissible, information if it appears reasonably likely to lead to the discovery of admissible evidence. The revised rule would omit the current language allowing for discovery of such information and, instead, include language permitting discovery of inadmissible information only to the extent it is otherwise within the realm of appropriate discovery. Thus, the information must be relevant to a claim or defense and proportional to the needs of the action. The Advisory Committee notes that simply because inadmissible information is reasonably calculated to lead to the discovery of admissible evidence, it should not necessarily be discoverable. 21 The main implication of these recommended changes is that time spent up front planning for potential litigation is even more important under the proposed rules. It will save time and money at the end and will allow you to manage the litigation more efficiently while also maintaining working relationships with the critical actors. To support arguments about proportionality, quantifying the costs of any requested ediscovery based on time and data charges will be important. Metrics will need to be developed with vendors based on historical charges to present detailed and credible cost calculations. It is likely that your costs at the outset of the case will increase and will need to be more carefully managed. In light of these higher costs, take a proactive role in seeking RFPs, flat fees and alternate billing arrangements, as needed and appropriate. As such modifications to billing structures provided by outside counsel become more common, outside counsel are likely to anticipate and accept such requests with increasing regularity. Limits on propounding discovery Rules 30, 31, 33 and 36 The proposed amendments would place new limits on certain types of discovery. The presumptive number of depositions would be limited to five for plaintiffs, defendants or thirdparty defendants under Rules 30 and 31, with the length of a deposition limited to a total of one day consisting of six hours. 22 The parties may exceed these limits by stipulating or obtaining a court order. Under the current rules, a party may take up to 10 depositions, with a maximum time of seven hours per deposition absent leave of court or a stipulation. With regard to interrogatories, whereas parties may now propound a maximum of 25 interrogatories, amended Rule 33 would limit a party to 15 interrogatories without obtaining permission from the court to propound more. In addition, under amended Rule 36, there would be a presumptive limit of 25 requests for admission. (However, requests to admit that a document is genuine would not be subject to the limit.) At this time, there are no limits on the number of requests for admission a party may serve. As is the case under the current rules, the court would also have authority under the amended rules to permit parties to propound additional requests consistent with Rule 26(b)(1) and (2). These proposed revisions limiting the number of requests parties may 92 ASSOCIATION OF CORPORATE COUNSEL

10 propound are aimed at streamlining the discovery process. These further numerical limits would encourage parties to more carefully consider the purpose of their discovery before propounding requests, and restrict their requests to those that are most useful to them in obtaining the information needed to prepare their case. The limits would likewise reduce the use of discovery to harass and overly burden parties served with the requests. Finally, to effectively manage litigation under the new rules, developing a process, perhaps after each case is completed, that reflects on successes and shortcomings will be particularly instrumental. This practice may help to identify patterns, corrective measures and changes that can be made to policies and trainings, both business and legal. The conclusion of a case is also a good time to improve business and legal processes and to evaluate the effectiveness of current outside counsel and vendors. ACC A copy of each of the proposed amendments and the report prepared by the Advisory Committee on Civil Rules is available online at rules/preliminnary-draftproposed-amendments.pdf. NOTES 1 Rule 4(m) currently requires a plaintiff to serve summons upon a defendant within 120 days after the complaint is filed in order to avoid a court order dismissing the action against that defendant or mandating that service be made within a particular time (assuming the plaintiff does not show good cause for the failure). 2 Under the current version of Rule 16(b) (2), the judge is required to issue a scheduling order either within 120 days after any defendant has been served or 90 days after any defendant has appeared, whichever is earlier. 3 Under the current version of Rule 16(b) (1), in most actions, the court must issue a scheduling order either after receiving the parties report under Rule 26(f) (subdivision A) or after consulting with the parties attorneys and any unrepresented parties at a scheduling conference or by telephone, mail, or other means (subdivision B). 4 Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure Request for Comment (2013) [hereafter, Committee Report, available at rules/preliminary-draft-proposedamendments.pdf, pp The new rule would not make scheduling conferences mandatory or require the court to hold such a conference before issue a scheduling order; however, the proposed rule seeks to make the scheduling conferences that are held more productive and meaningful for all parties involved. 6 The current version of the rule states that scheduling orders must set deadlines on the period in which to join other parties, amend pleadings, complete all discovery and file motions. Under the current rule, parties are also permitted to alter the timing of the disclosures pursuant to Rules 26(a) (which governs initial disclosures of documents and information, expert information, pretrial disclosures) and 26(e)(1) (which concerns supplementing disclosures and discovery responses) in scheduling orders and the extent of discovery; specify provisions for disclosure or discovery of electronically stored information; set forth agreements among the parties regarding asserting claims of privilege or protection as trial-preparation material after producing information; establish dates for trial and pretrial conferences; and set forth other matters that may be appropriate. 7 As the Advisory Committee noted, the decision whether to require such conferences is within the judge s discretion. Committee Report, p Gartner Predicts by 2017, Half of Employers will Require Employees to Supply Their Own Device for Work Purposes, available at newsroom/id/ , May 1, See Committee Report, p. 298 (requests are considered served at the first Rule 26(f) conference). A corresponding revision to Rule 34(b)(2)(A) has been proposed, which would clarify that the party served with the request must respond within 30 days after being served or within 30 days after the first Rule 26(f) conference if the request was delivered under Rule 26(d)(2). 10 Committee Report, p Committee Report, p Committee Report, pp Committee Report, p Id. 15 Committee Report, p Committee Report, p These curative measures are not spelled out, but the Advisory Committee noted that they may include allowing additional discovery that otherwise would not be permitted, requiring the party that lost the information to restore or develop substitute information, and permitting evidence to be introduced at trial regarding the lost information. Committee Report, pp See Committee Report, pp The proposed rule sets forth five factors to guide this inquiry: (1) the extent to which a party had notice that litigation would likely commence and that the information in question would be discoverable; (2) the reasonableness of the party s efforts to preserve the information; (3) whether the party received a reasonable, clear request to preserve the information and whether the parties conferred about the scope of the request; (4) the extent to which the preservation efforts were proportional to any anticipated or ongoing litigation; and (5) whether the party timely requested guidance from the court regarding any disputes between the parties concerning preserving the information. 20 See Committee Report, p ( Explicit recognition will forestall the temptation some parties may feel to contest this authority. ) 21 Committee Report, p The Advisory Committee noted that six hours should suffice for most depositions, and encourage efficient use of the time while providing a less arduous experience for the deponent. Committee Report, p ACC DOCKET OCTOBER