MVA Litigation

            The costs that parties incur in the broils of litigation have been on the front burner in recent years, with the temperature rising. In 2010, the Judicial Conference Advisory Committee on Civil Rules sponsored a Conference on Civil Litigation at the Duke University School of Law (the “Duke Conference”) to address possible solutions for reducing the costs of civil litigation, particularly with respect to discovery.  We also have seen many reported cases over the past few years that have attempted to strike a balance between the obligations to preserve and produce information relevant to litigation and the significant burden that parties bear when tackling voluminous electronic discovery.  On August 15, 2013, the Advisory Committee on Civil Rules published for public comment Proposed Amendments to the Federal Rules of Civil Procedure which address the challenges of managing the scope of discovery in the digital age and the attendant consequences for a party’s failure to meet its discovery obligations.  The proposed revisions seek (1) to implement a requirement that the scope of permissible discovery be proportional to the litigation at issue, (2) to pare down the presumptive number of discovery requests, (3) to foster more cooperation between the parties and court involvement in managing litigation, and (4) to provide additional safeguards for parties against sanctions for the failure to preserve discoverable information when the failure was not willful or in bad faith.  The majority of the proposed revisions are described and presented as “a package developed in response to the central themes that emerged from the [Duke Conference].”  We highlight the major revisions in this post and the process for public comment.  You can find a full copy of the proposed revisions and additional details regarding the comment process at the following links: Proposed Amendments and Comment Submission.

The Proposed Amendments

The Advisory Committee posted proposed amendments to Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and the Rules’ Appendix of Forms.  We will highlight most of those amendments here.  The proposed amendments to Rules 1, 4, 16, 26, 30, 31, 33, 34, and 36 are presented in three categories targeted to address the recurring themes that arose during the Duke Conference - early and active judicial case management, proportionality in discovery, and cooperation among lawyers.  The revisions to Rule 37 regarding spoliation sanctions are the result of discussion initiated at the Duke Conference and developed through subsequent efforts.

Case Management Revisions 

The Advisory Committee proposed the following revisions to Rules 4, 16, and 26 to address case management:

• Rule 4(m) revision shortens the time to serve a summons and complaint from 120 days to 60 days.
• Rule 16(b)(2) now provides that the judge must issue a scheduling order within the earlier of 120 days after any defendant has been served or 90 days after any defendant has appeared. The revision cuts the times to 90 days after any defendant is served or 60 days after any defendant appears, allowing the judge to extend the time on a finding of good cause for delay.
• Rule 16(b)(1)(B) currently authorizes issuance of a scheduling order after receiving the parties’ Rule 26(f) report or after consulting “at a scheduling conference by telephone, mail, or other means.”  The revision requires a conference by direct communication and strikes “mail, or other means,” because they are not considered effective.
• Rule 16(b)(3) and 26(f) proposals would permit a scheduling order and discovery plan to provide for the preservation of electronically stored information and to include agreements reached under Rule 502 of the Federal Rules of Evidence.
• The proposal adds a new Rule 16(b)(3)(v), which permits a scheduling order to “direct that before moving for an order relating to discovery the movant must request a conference with the court.”
• Rule 26(d)(1) revision allows for early Rule 34 document requests for the purpose of facilitating the scheduling conference by allowing consideration of actual requests. The revision allows document requests to be delivered early, but the requests are not considered to have been served until the date of the first Rule 26(f) conference, which starts the clock for determining the due date of responses.

Discovery Proportionality Revisions

The Advisory Committee proposed revisions to Rules 26, 30, 31, 33, 34, and 36 “to promote responsible use of discovery proportional to the needs of the case.”

• Rule 26(b)(1) revisions:
  • Require that “discovery 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’s [sic] 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 scope of party controlled discovery is narrower and now limited to “matter that is relevant to any party’s claim or defense,” rather than the more expansive “subject matter involved in the action” allowed under the current Rule.
  • To reduce the risk that the provision regarding admissibility will negate the limits placed on the scope of discovery, the language stating “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence” in the current Rule is revised to read “Information within this scope of discovery need not be admissible in evidence to be discoverable.”
  • Rule 26(c)(1)(B) revision adds an explicit recognition of the authority to enter a protective order that allocates the expenses of discovery.
  • Revisions to Rules 30 and 31 reduce the presumptive limit on the number of depositions from 10 to 5 and reduce the presumptive duration to 1 day of 6 hours, providing that the court must allow additional depositions “to the extent consistent with Rule 26(b)(1) and (2).”
  • Rule 33 revision reduces the presumptive number of Rule 33 interrogatories from 25 to 15.
  • Rule 36 revision adds a presumptive limit of 25 requests for admission and expressly exempts requests to admit the genuineness of documents.
  • Rule 34 revisions address objections and responses to document requests:
    • Rule 34(b)(2)(B) would require that the grounds for objecting to a request be stated with specificity.
    • Rule 34(b)(2)(C) would require that an objection “state whether any responsive materials are being withheld on the basis of that objection.”
    • Additional revisions address timing of the production of documents.

Cooperation Revisions

In response to the Duke Conference discussions regarding “costs imposed by hyperadversary behavior,” the Advisory Committee ultimately proposed what it described as a “modest addition to Rule 1” under which “parties are made to share responsibility for achieving the high aspirations expressed in Rule 1.”  The revision reads: “[T]hese rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Preservation and Spoliation Revisions

The new proposed Rule 37(e) seeks to rectify the conundrum that parties face with the potential of litigation in various jurisdictions that have established divergent standards for preservation and the imposition of sanctions.  The new Rule:

• Establishes a national standard for the imposition of sanctions that eliminates the court’s ability to impose sanctions under the court’s “inherent authority” or state law.
• Expands on the current Rule’s application by applying to all discoverable information and not only to electronically stored information.
• Permits under Rule 37(e)(1)(B)(i) sanctions or an adverse inference jury instruction “only on a finding that the party to be sanctioned has acted willfully or in bad faith” AND if the loss caused “substantial prejudice” to the opposing party.
• Permits under Rule 37(e)(1)(B)(ii) sanctions in the absence of a willful or bad faith act only when the loss of information “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation” and “only if the affected claim or defense was central to the litigation.”

The Advisory Committee noted that the proposed new rule rejects Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002), which stated that negligence is sufficient culpability to support sanctions, but accommodates case law (citing cases in the Eleventh and Fourth Circuits) that supports sanctions in the absence of a finding of willfulness or bad faith in exceptional circumstances.

The Advisory Committee posed five specific questions regarding the Rule 37(e) revisions for comment:

1. Should the rule be limited to sanctions for loss of electronically stored information?
2. Should Rule 37(b)(1)(B)(ii) be retained in the rule?
3. Should the provisions of current Rule 37(e) be retained in the rule?
4. Should there be an additional definition of “substantial prejudice” under Rule 37(e)(1)(B)(i)?
5. Should there be an additional definition of willfulness or bad faith under Rule 37(e)(1)(B)(i)? If so, what should be included in that definition?

Additional details on the Committee’s questions regarding revisions to Rule 37(e) and proposed revisions to the other Rules, including Rules 55, 84 and the Rules’ Appendix of Forms, can be found in the Proposed Amendments.

Comment Timeline & Process

The posting of the Proposed Amendments for public comment is the first of many steps in the process of finalizing any revisions to the Rules. Prior to the close of the comment period, several hearings on the proposed revisions will be held at which members of the public may provide testimony.  Before the amendments can become effective, they must be approved by the Advisory Committee, the Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court.  They also are subject to Congressional action. If the proposed amendments pass all stages, they will become effective on December 1, 2015.  Pertinent deadlines in the comment timeline include:

• The comment period is open until February 15, 2014.
• Hearings will be held in Washington, D.C., on November 7, 2013, in Phoenix, Arizona, on January 9, 2014, and in Dallas, Texas, on February 7, 2014.
• If you wish to testify, you must notify the Committee at least 30 days before the scheduled hearing.

Additional information regarding the hearing and comment schedule can be found through the Proposed Amendments and Comment Submission links.

Comments can be submitted electronically through this link, or by mail to: