Recently we discussed changes to the Federal Rules that became effective on December 1.  But there are further significant changes to the Federal Rules of Civil Procedure in the works, which are currently open to public comment.  Among other things, the Advisory Committee on Civil Rules has proposed changes to promote proportionality in discovery and to provide clearer guidance on when a party may be sanctioned for failing to preserve documents.  This post addresses the former; proposed amendments regarding sanctions for failure to preserve will the topic of the third post in this series.

Proposed changes to Rule 26 would move the cost-benefit analysis of current Rule 26(b)(2)(C)(iii), which describes when a court may limit discovery, into Rule 26(b)(1), defining the permissible scope of discovery.  As a result, all discovery would have 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 the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

The Western District of Washington took a step in this direction last year, when it amended LCR 26(f) to provide that all aspects of discovery planning must take into account the proportionality standards of Rule 26(b)(2)(C).

The Advisory Committee recommending this change notes that “excessive discovery occurs in a worrisome number of cases, particularly those that are complex, involve high stakes, and generate contentious adversary behavior.”  The Committee found that, although the text of Rule 26(b)(2)(C)(iii) may be adequate, “it is not invoked often enough to dampen excessive discovery demands.”

Proposed amendments to the federal rules also would attempt to impose a measure of proportionality in discovery by limiting the use of basic discovery tools.  Thus, the amendments would lower the presumptive number of depositions from 10 to 5 and the time for each deposition from 7 hours to 6.  In response to the concern that many cases may warrant more depositions, the Committee noted that courts can always allow more but that “[h]opefully, the change will result in an adjustment of expectations concerning the appropriate amount of civil discovery.”

The proposed amendments also would limit interrogatories to 15, rather than the current 25, and would set a new limit of 25 requests for admission.  Although requests for production will not be limited in number, the proposed amendments would require that objections be stated with specificity and state whether any responsive materials are being withheld based on the objections.

While there are number of steps remaining before these proposed amendments become “law,” they are open to public comment until February 2014.  Anyone wishing to comment may do so by February 15, 2014 by mail to the Committee on Rules of Practice and Procedure, Administrative Office of the United States Courts, One Columbus Circle NE, Washington, D.C. 20544, or online at www.regulations.gov.

–Miles Yanick