Changing the Rules of the Game: The Proposed Amendments to Federal Civil Rules Seek to Add New Limits on Discovery

January 31, 2014

Businessman looking through a magnifying glassThe Advisory Committee on the Civil Rules has proposed sweeping amendments to the Federal Rules of Civil Procedure that would impose new limits on discovery.  In specific, the proposed amendments would:

  • require a party seeking discovery to establish before getting any discovery that the requests are justified by the value and “importance” of the case; and
  • limit the number of depositions, interrogatories, and requests for admissions.

Lawyers and corporate interests have weighed in on the proposed amendments during a series of public hearings and by submitting written comments.  Not surprisingly, corporate interests and lawyers paid to defend corporate interests have expressed support for the new discovery limitations.  Lawyers who represent people or businesses that have been harmed by wrongdoers have generally opposed these key changes.

The Rule Making Process

The amendments were initially crafted by the Advisory Committee, which, after public hearings and a public comment period, will revise, reject, or approve the amendments.  Any surviving amendments must be approved by:

  • The full Committee on Rules of Practice and Procedure;
  • The Judicial Conference; and
  • The Supreme Court.

If Congress does not act to defer, modify, or reject them, the amendments would become effective on December 1, 2015.

Key Proposed Amendments

The proposed amendments cover a wide range of subjects.  Two key proposed changes relate to the scope of discovery generally and new limitations of discovery mechanisms.

(1)   Scope of Discovery

The proposed amendments to Rule 26(b)(1) change the traditional scope of discovery  – information that is relevant to the party’s claim or defense – additionally to require a threshold showing that the requested discovery is “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.

Proponents of this change argue that these limitations presently exist in Rule 26(b)(2)(C)(iii) and courts are already obligated, either on motion or on their own initiative, to make such a determination.

Opponents express concern that the proposed amendment would create an additional early burden on claimants seeking discovery that would be nearly impossible to meet in many cases.  For example, it would be difficult before any discovery for claimants to prove the value and “importance” of their claims, and the “importance” of discovering unknown information that is solely in the opposing party’s possession. Moreover, opponents argue, if the proposed change is adopted, every discovery request can be expected to be met by withheld information and an accompanying objection contending that the requesting party has not met its burden to justify discovery.

(2)   New Limits on Discovery Mechanisms

The proposed amendments also seek to impose new limits on existing discovery mechanisms, including:

  • Reducing the presumptive number of depositions from 10 to 5, and reducing the time limit from 7 hours to 6 hours per deposition;
  • Reducing the number of allowable interrogatories from 25 to 15; and
  • Imposing a new limit of 25 on requests for admissions.

Proponents argue that the new limits are necessary because depositions are overused in civil litigation. Proponents also argue, somewhat inconsistently, that in a vast majority of federal cases, the parties are taking 5 or fewer depositions – so the amendment would have no impact in most cases. In further support of the changes, proponents also cite a general concern that discovery costs are too high.

Opponents argue that the data establish that the present 10 deposition limit and the current number of other allowable discovery requests are working well in practice and changes are unnecessary.  Some opponents suggest that further discovery restrictions discovery would be unfair to claimants who have the ultimate burden of proof in the litigation. Moreover, interrogatories and requests for admissions provide low cost means for discovering information and narrowing issues for trials and, therefore, new limitations of these mechanisms would provide little or no cost-savings.

* * *

The Rules Committee will hold its last public hearing on the proposed amendments, at which I will be testifying, February 7, 2014 in Dallas, Texas. The deadline to submit comments regarding the proposed amendments is February 15, 2014.

[Future posts will examine the proposed amendments to Rules 26 and 37 that would give courts explicit authority to shift the costs of discovery to requesting parties and would provide safe harbors to parties that fail to preserve discoverable evidence, respectively.]