Lawyers are concerned that discovery is getting out of hand.
The masses of data that are part of everyday operations in modern organizations are generating ever-more complicated discovery demands, even in simple cases.
Responding to concern from litigators nationwide, the U.S. Courts’ Advisory Committee on Rules of Civil Procedure recently approved proposed changes to several discovery-related Federal Rules of Civil Procedure. The proposals also address e-discovery sanctions and limits on depositions and interrogatories
And while the proposals have multiple levels of review and likely editing before finalization, lawyers need to keep an eye on the process.
The proposed changes include decreasing the presumptive number of interrogatories, depositions and requests for admission and modifying Rule 37(e) addressing sanctions involving electronic discovery.
Most controversial is the committee’s suggestion for amending Rule 26(b) to specifically include a definition of “proportionality,” effectively limiting discovery.
“The intent of these changes is to narrow the scope of discovery,” explained Robert A. Angle, co-leader of Troutman Sanders’ electronic discovery group in Richmond.
“Discovery has certainly gotten out of hand in a number of cases and the proposals would be a good change,” he said.
The committee heard two primary themes that were “practically a mantra” from practicing attorneys about changes to the rules: cooperation and proportionality, according to University of Michigan Professor Edward Cooper, the reporter for the Advisory Committee that drafted the proposed rules.
“Most lawyers behave responsibly, but some don’t,” he said. The proposed changes attempt to “re-instill the spirit of reasonably professional responsibility within the context of an adversary system.”
As for proportionality, “you don’t need to spend $1 million on discovery in a $100,000 case,” Cooper said. “There are problems on both sides where parties engage in wild discovery or resist entirely reasonable discovery and lawyers expressed concern about a disproportionate focus on discovery” instead of the merits of a case, he said.
But not all attorneys have thrown their enthusiastic support behind the proposed changes.
While she praised the inclusion of cooperation principles in the proposals, New York City lawyer Ariana J. Tadler said the rules as currently written are not broken and changes “could lead to more satellite litigation than we already have.”
“The concept of proportionality is already in the rules – people just haven’t used it the way they are supposed to use it,” she argued. “Simply moving the proportionality requirement to a different place in the rules is not going to somehow solve the problem.”
Tadler’s colleague Henry Kelston agreed.
“Some people are confusing action with progress,” he said.
Changes, changes everywhere
The Advisory Committee submitted several proposed changes to the Standing Committee for review covering a number of different rules and aspects of discovery.
Emphasis on proportionality
Rule 26(b) currently provides for discovery of “any matter relevant to the subject matter involved in the action,” and it “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”
In its proposed amendment, the committee narrowed the boundaries of discovery to information that is “proportional to the needs of the case.”
While proportionality is currently referenced in Rule 26(b)(2)(c)(iii) as a consideration for the court to limit discovery, Cooper said the committee felt the need to move those factors into the body of the rule, emphasizing their importance.
Litigants were pointing to the broad language and arguing that discovery was essentially unlimited, so the changes now say that relevant information must be admissible if reasonably calculated to lead to discovery, Cooper said.
McLean lawyer Conor R. Crowley said that the emphasis on proportionality “will make it clearer to lawyers that the proportionality argument is available to them, which should help.”
Limits on depositions, interrogatories, requests for admission
Changes to Rules 30, 31 and 33 would place new limits on discovery, reducing the presumptive amount of written interrogatories from 25 to 15, the length of depositions from seven hours to six and the number of depositions from 10 to five. Under a proposal to amend Rule 36, a limit on the number of requests for admission would be imposed for the first time; the Committee suggested 25, not including requests regarding the genuineness of documents which were not given a limit.
Cooper said the intent of the reductions was to make the parties “think harder” about what they really need in a given case. Angle noted that some courts have already placed similar limitations via court rules, so the changes will have limited significance for some litigants.
However, the limitation on requests for admission could be significant, he said.
“By reducing the total number, it could force parties to make broader requests to try to capture more information,” he said. If the proposed limit is enacted, “it could lead to potential fights over the breadth of requests and how they should be construed.”
But at the end of the day, “these are just presumptive limits,” Angle said. “Lawyers can always go to the court and request leave to go beyond them.”
“I don’t think there should be further limits on depositions by virtue of number or hours,” she said. “The reciprocal argument is that if lawyers think there should be fewer depositions or interrogatories then they can negotiate with their adversary for less.”
In e-discovery, preference for curative measures over sanctions
The changes to Rule 37(e) attempt to address concerns – particularly from the defense bar and larger corporations – about the mounting costs of meeting the obligation to preserve data out of fear that deletion could lead to judicial sanctions.
“Lawyers are terrified of sanctions for not preserving data or for spoliation,” Cooper said.
In an attempt to alleviate such concerns and create a more uniform national standard among federal court judges about the standards for awarding sanctions, the proposed amendments to Rule 37(e) create two different types of consequences with an emphasis on curative measures as opposed to sanctions where parties made reasonable efforts to preserve electronically stored information.
Curative measures include “digging through swamps of back-up tapes,” Cooper suggested, or a party could be ordered to re-create data or pay additional discovery costs in an attempt to find the data from other sources.
If remedial measures are unavailing, sanctions are still available.
Sanctions are limited to two sets of circumstances, however: where the discovery loss caused “substantial prejudice” and was willful or in bad faith, or in the alternative, where the party’s actions constitute negligence or gross negligence and the party was deprived of a “meaningful opportunity” to present or defend against claims in the action.
Language in play
Tadler expressed concern that the term “proportionality” would become a buzzword found in most discovery disputes, particularly used as a sword against plaintiffs.
“A damage model alone is not the dispositive factor of value in a case,” Tadler said. “The fact that someone has been wronged is not necessarily determined exclusively on the monetary value of the wrong.”
Tadler also cautioned that the rules still have several steps of approval before final passage and the language could change. “In my mind, there is still a lot in play,” she said.