The Advisory Committee on Civil Rules recommends changes to the Federal Rules of Civil Procedure to the federal Judicial Conference. For several years that body has been debating proposals to curb perceived discovery abuses (particularly in the area of e-discovery sanctions) and to bring down the cost of discovery in civil litigation overall. On the discovery side, initial drafts of the proposed amendments included changes to the presumptive number of interrogatories, requests for admission, number of depositions, and the length of depositions.
As reported in various places including the K&L Gates’ e-discovery blog the committee, which is having a final meeting on these rules here in Portland starting tomorrow, has largely dropped these proposals following significant opposition from many quarters including comments by law professors and various segments of the bar. However, the committee is still promoting a dramatic change to Rule 26’s foundational rule on the scope of discovery which would put the burden on the requesting party to justify discovery requests as being “proportional” to the case. As articulated in comments by policyholder counsel, this change will disadvantage businesses (and individuals) in litigation with insurance companies, where it is usually the “little guy” (the policyholder) who is trying to penetrate layer upon layer of insurance company bureaucracy to find the truth. This often requires multiple rounds of discovery requests, multiple depositions and a lot of other types of digging.
So while it is good news that the committee has withdrawn the changes on discovery tools, the overall proposed change to Rule 26 is still cause for concern. Unfortunately, opportunities for public input are limited after this point – the issue may become fodder for an unusual public fight in the Congress over the federal rules.