Civil Procedure

Will federal discovery be streamlined? Proposals would limit depositions, emphasize proportionality


Proposed amendments to the Federal Rules of Civil Procedure aim to reduce the burden of discovery.

The proposals set lower presumptive limits for depositions and interrogatories, emphasize proportionality, and limit sanctions for e-discovery violations, Law Technology News reports in an article by Milberg senior counsel Henry Kelston.

The proposed changes are being sent “up the rulemaking chain” as a result of a vote earlier this month by the U.S. Courts’ Advisory Committee on Rules of Civil Procedure, according to Law Technology News. Barring unforeseen delays, the amendments could be enacted by December 2015, according to an article by Reed Smith lawyers David Cohen and Emily Dimond.

“While historically most amendments to the rules have broadened discovery obligations,” Cohen and Dimond write, “there now appears to be wide support for proposals aimed at getting discovery back under control.”

Law Technology News outlines several proposed changes, including these:

• An amendment to Rule 26(b) would restrict the scope of discovery to information that is “proportional to the needs of the case.” Currently, a subsection of the rule requires courts to limit disproportionate discovery. The change would require the parties to adhere to the requirement without court intervention.

• The presumptive number of depositions would be reduced from 10 to five, and the time limit for each oral deposition would be reduced from seven to six hours. The presumptive number of written interrogatories would be reduced from 25 to 15.

• Rule 37(e), which governs failure to provide electronically stored information, would be changed to protect against serious sanctions when litigants make reasonable efforts to preserve electronic evidence. Under the proposed revision, failure to preserve information can result in remedial measures that aren’t considered sanctions, including directing a party to re-create or obtain lost information, or allowing additional discovery.

• Rule 37(e) would still allow sanctions or an adverse jury instruction for failure to produce electronic information, but only if the failure caused “substantial prejudice” and was “willful or in bad faith”; or if it “irreparably deprived a party of any meaningful opportunity” to litigate the claims.

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