The Federal Rules of Civil Procedure may soon be getting a major overhaul.

The United States Courts' Advisory Committee on Rules of Civil Procedure voted last week to send a slate of proposed amendments to its Standing Committee on Rules of Practice and Procedure for consideration at its meeting June 3-4 in Washington, D.C.

The proposed rules would effectively limit the scope of discovery, which is a marked departure from past amendments that have broadened discovery obligations.  While there are many open-ended questions that will need to be addressed, the proposed changes could alleviate some of the e-discovery burdens often placed on companies and their in-house counsel. 

The most significant change would be to Rule 26(b), which governs the scope of discovery. The proposed rule would restrict the scope of discovery to information that is “proportional to the needs of the case.”

Currently, courts are required to limit discovery that it determines to be disproportionate. The new rule would require the parties to adhere to the requirement without court intervention.

The proposed rules would also eliminate from Rule 26(b) the following: “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

“Many lawyers and judges reading the current rule have concluded that, since almost any information could potentially lead to relevant and admissible evidence, almost anything is discoverable,” states a client alert from law firm Reed Smith. “This conclusion, coupled with the recent growth in electronic storage capability, has rendered the discovery process virtually limitless. The proposed rule is intended to correct this overbroad understanding.”

The proposed rules would also reduce the number of depositions allowed per side from 10 to five, and further reduces the time limit for each oral deposition from seven to six hours. The presumptive number of written interrogatories would be reduced from 25 to 15.

Imposition of Sanctions

Another significant rule change concerns Rule 37(e), which governs the imposition of sanctions for failure to preserve electronically stored evidence. The rule was originally intended to provide a “safe harbor” for limiting sanctions, but has rarely been invoked.

The proposed amendments to Rule 37(e) “provide more significant protection against inappropriate sanctions” for the failure to produce any type of evidence—electronic or not. The amendments also seek to reassure those who might otherwise be inclined to engage in burdensome and expensive “over-preservation.”

In instances where the parties failed to preserve evidence, the proposed rules suggest several options for the court to consider before resorting to sanctions. These options include permitting additional discovery; ordering the party to undertake curative measures; and requiring the party to pay the expenses caused by the failure.

The proposed rule would also impose a uniform, higher standard for federal courts by requiring that the failure to preserve evidence was “willful or in bad faith,” and that the loss of information caused “substantial prejudice” to the litigation.

The amended rule is designed to ensure that parties who make reasonable efforts to satisfy their preservation responsibilities may do so with confidence that they will not be subjected to serious sanctions should information be lost despite those efforts. The amended language does not define the concepts of willfulness and bad faith, which will be left up to the courts to determine according to their expertise and experience.

“The risk of e-discovery sanctions, which exists even absent clear guidance on the scope of preservation obligations and even where litigators and their clients have been acting in good faith, has been a real and justified concern for in-house counsel and their outside counterparts,” the Reed Smith client alert states.

“One hopes that these proposed rule amendments can help to ameliorate both of those problems and refocus the litigation process back to where the focus should be—on the merits of the claims and defenses rather than on any discovery sideshows or unfair leverage due to the sheer costs and burdens of unrestricted discovery.”

If the Standing Committee gives the go-ahead, the proposed rules will be published for public comment later this year.