Tuesday, December 17, 2013
An ABA Webinar cast earlier this afternoon entitled "The Proposed Revisions to the Federal Rules of Civil Procedure" featured three members of the Civil Rules Advisory Committee, John M. Barkett (moderator), Judge John Koetl, and Judge Paul Grimm.
I will not repeat the bulk of the presentations, as the Advisory Committee transmittal memorandum and notes on the proposed amendments cover much of what was said.
Judge Koetl stated that the major themes that emerged at the 2010 Duke Conference (out of which the proposed amendments grew) to reduce the "cost and delay" of civil litigation were proportionality of discovery, cooperation among lawyers, and early and active judicial case management.
In the category of early and effective judicial case management, the proposals include (among others) suggesting the addition of new topics to the scheduling order, such as a provision that the court can direct that before moving for discovery the parties must have a conference with the court.
This last point was interesting, because Judge Koetl stated that "about a third of the federal judges in the country do that now," and that those judges who do have found that it eliminates most discovery motions. He stated that there was talk of making this requirement mandatory, but "because most judges don't do it, we only encouraged it."
Turning to the proposals dealing with "proportionality" in discovery, Judge Koetl stated that the scope of discovery under Rule 26(b)(1) is changed in three main ways:
1. It is limited to matter that is relevant to a party's claim or defense. The current provision allowing the ordering of discovery "relevant to the subject matter" for "good cause" should be deleted.
2. The current statement of proportionality is "effectively buried" in Rule 26(b)(2)(C)(iii), so it should be moved to be within Rule 26(b)(1).
3. The current provision that says relevant information need not be admissible in evidence, if the discovery is reasonably calculated to lead to the discovery of admissible evidence, should be changed. That provision was intended, Judge Koetl asserted, to be an answer to something like a hearsay objection at a deposition; instead, that language has been used in some cases to expand the scope of discovery beyond its original intent. The proposed revision says information within the (proposed revised) scope of discovery need not be admissible in evidence to be discoverable.
Every listener who posed a question to the panel was at least somewhat critical of the proposed amendments. One listener argued that there was no empirical support for the proposition that there is no "proportionality" in discovery currently, and believed that the proposals were "punishing the innocent majority for the malfeasance of the minority." Judge Koetl responded that the studies that were conducted for Duke both by the FJC and others reflected measurable dissatisfaction "by a significant number of lawyers for plaintiffs and defendants with respect to discovery being disproportional with respect to the stakes in the case." It was not a majority who found costs disproportional, but it was "a significant number of cases."
Judge Koetl also briefly covered the reduction in presumptive limits on certain discovery devices (for example, the reduction from 10 to 5 depositions), and the proposed revision to Rule 1 to remind lawyers of their duty to cooperate. Judge Grimm covered the proposed amendments to Rule 37 on preservation and spoliation standards.
Mr. Barkett reminded listeners that upcoming hearings were January 9 in Phoenix and February 7 in Dallas. The public comment period closes Feb. 15, 2014. See Adam Steinman's earlier post here.