United States: Call To Clients To Share Data Illustrating Consequences Of Discovery Costs: Comment Period Opens For Amendments To The Federal Rules Of Civil Procedure


On August 15, 2013, the Civil Rules Advisory Committee (hereinafter "the Committee") began what is expected to be a six-month period of open commentary on the proposed amendments to the Federal Rules of Civil Procedure ("FRCP"). This invitation to comment offers law firms and litigants an opportunity to influence, and provide context regarding, rules that will affect the legal community and our businesses for years to come.

We hope that you will participate in this commentary process and contact us with specific examples of costs, data volumes, or preservation decisions that symbolize the extraordinary cost and disruption to business that can result from uncontrolled discovery. As Orrick evaluates whether to submit comments, we are assembling case studies as we expect commentary with empirical data will be most meaningful and worthwhile. Should we comment, we will speak to the experiences of our broad client base while also highlighting the experience of small and emerging companies, the perspective most underrepresented in the dialogue to date. If you have data points or case studies you are willing to allow Orrick to include in comments to the committee, we invite you to contact us, and we look forward to the opportunity to work with you on shaping these important practice rules.

Overview of Key Proposed Amendments Impacting Discovery

Rule 16 – Initial Case Management Conference, Scheduling Orders and Case Management

Rule 16(b)(2) currently requires judges to issue a scheduling order within the lesser of 120 days after any defendant has been served or 90 days after any defendant has appeared. Under the proposed changes, judges will be required to issue an order within the lesser of 90 days after any defendant has been served or 60 days after any defendant has appeared. The amended rule would also allow courts to extend these deadlines in appropriate cases. Concerns have been expressed to the Committee that the shorter timeline will reduce the amount of time parties have at the beginning of an action to think about the case and prepare for a meaningful scheduling conference. Indeed, it is foreseeable that the shorter timeline could reduce the ability of parties to assess their case, interview key players/custodians and prepare a well-thought-out discovery plan.

Next, the Committee is proposing adding a new sub-paragraph (v) to Rule 16(b)(3), permitting a scheduling order to "direct that before moving for an order relating to discovery the movant must request a conference with the court." The Committee has observed that many courts have similar requirements in their local rules and that the requirement for an informal pre-motion conference with the court often resolves a discovery dispute without the need for a formal motion, thereby reducing discovery-related costs and delays. The question remains whether this amendment would go far enough or whether, to achieve the intended impact, pre-motion conferences must be mandatory absent exceptional circumstances.

Rule 26 – Duty to Disclose and General Provisions Governing Discovery

Rule 26(d)(1) may be amended to allow discovery requests to be made before the parties participate in a Rule 26(f) conference, a practice not currently allowed.i The Committee reasons that allowing parties to serve discovery requests early will help facilitate a more substantive, informed and meaningful discussion at the Rule 26(f) conference.

Second, in an effort to promote greater use of the proportionality concept during discovery, the Committee is proposing to amend Rule 26(b)(1) to expressly incorporate the cost-benefit analysis contained in the existing Rule 26(b)(2)(C)(iii) limiting the scope of discovery. Amended Rule 26(b)(1) would read: "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit."ii Third, as currently written, Rule 26(b)(1) allows court-controlled discovery into "any matter relevant to the subject matter involved in the action." In an effort to narrow the scope of discovery, the Committee is proposing amending Rule 26(b)(1) to strike this clause, limiting discovery to only information "relevant to any party's claims or defenses" as set forth in the pleadings.iii

Finally, the Committee is proposing an amendment to Rule 26(c)(1)(B) to make explicit the power to shift costs. What remains to be determined is whether the commentary to the final rules will give additional context and explanation educating litigants that the courts' power to shift costs applies to the entire discovery life cycle, including preservation, collection, processing and review.

Rule 34 – Limitations on Requests for Production

The Committee considered and rejected a proposal to presumptively limit the number of Rule 34 requests for production to 25—much as Rules 30, 31, and 33 now contain presumptive limitations—thereby leaving request for production as the only form of discovery not subject to an express presumptive limitation.iv

This decision is a stark contrast to laudable trends in local rules and protocols. The Federal Circuit's Model E-Discovery Order presumptively limits the number of custodians and search terms and recognizes the potentially limited probative value of email. Likewise, while the Southern District of New York's Joint Electronic Discovery Submission does not provide the parties with specific presumptive limits, the court does require the parties to certify that they have contemplated and discussed limits on, for example, (i) the number of custodians, (ii) document sources, and (iii) files types. The SDNY publication also includes a "Pretrial Conference Checklist" that puts parties on notice that they must be prepared to demonstrate their adherence to the principle of discovery proportionality embodied in Rule 26(b) by agreeing to limit the breadth of document preservation, reduce the scope of discovery and limit or prohibit preservation depositions.

Similarly, although the Committee is proposing several amendments to Rule 34 to facilitate more straightforward responses to document requests and discourage use of boilerplate objections, the Committee has not proposed any amendments that would bar boilerplate requests, such as those for "any and all" documents.v

Rule 37 – Sanctions for Spoliation

The most discussed, controversial and anticipated amendment is the change to the safe harbor provisions of Rule 37. In fact, the proposed language is likely to be further revised as evidenced by the specific questions posed by the Committee in the call for commentary. The proposed amendment is an attempt to respond to the increasing frequency and intensity of calls from both the corporate and legal communities for predictability, uniformity and guidance from the Rules on questions of preservation.vi The new language is an attempt to provide clarity with respect to what is sanctionable conduct so that litigant behavior is guided by rational analysis instead of fear. The Committee is also seeking to ensure that proportionality is a defensible argument in the context of preservation, just as it is in many other areas of discovery. As amended, Rule 37(e) would explicitly require a finding of "willful or bad faith misconduct" and "substantial prejudice" for the imposition of spoliation sanctions. The commentary period will draw out opinions as to whether these changes secure and provide clarity to the protection already available or instead erode existing protections by codifying willful conduct as the standard for sanctions.


In closing, we note that the Committee has proposed other amendments to the FRCP, including some of the federal rules governing discovery, that are not discussed above. Instead, we discuss only those proposed amendments that we believe are most likely to have an impact on the conduct of discovery, and its cost, or be of interest to you, our clients. We encourage you to review the complete Committee Report at http://www.uscourts.gov/RulesAndPolicies/rules/proposed-amendments.aspx.


i. A corresponding amendment would also be made to Rule 34(b)(2)(A), setting the time to respond to a request delivered under this new rule to within 30 days after the parties' first Rule 26(f) conference. This would ensure that early service would not advance the deadline for responding to these requests.

ii. A corresponding change would also be made to Rule 26(b)(2)(C)(iii) to expressly refer to the amended portion of Rule 26(b)(1).

iii. In the same vein, the Committee proposes striking the penultimate sentence in Rule 26(b)(1), which currently reads: "Relevant information need not be admissible at trial if it is reasonably calculated to lead to the discovery of admissible evidence."

iv. The Committee has recommended amending Rule 36 to impose a presumptive limit of 25 on requests for admission.

v. For example, the Committee proposed amending Rule 34(b)(2)(B) to require that grounds for objections to document requests be stated with specificity. Additionally, the Committee proposed amending Rule 34(b)(2)(C) to require that an objection "state whether any responsive materials are being withheld on the basis of that objection."

vi. Judicial analysis underlying the question of whether to impose a sanction for spoliation, and if so, which sanction, is informed by a colorful assortment of criteria when considered on a national scale. All you have to do is take a look back at Judge Grimm's nowlegendary Victor Stanley chart to appreciate the level of uncertainty in the law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions