Amendments to Federal Rules on the Horizon
Those concerned by the continually rising cost of civil discovery in federal court may soon see some improvements. According to a report of the Civil Rules Advisory Committee following a 2010 conference at Duke Law School, litigation costs (mostly from discovery expense) more than doubled for twenty major companies between 2000 and 2008. The Committee’s bottom line, which has now resulted in proposed amendments to the Federal Rules of Civil and Bankruptcy Procedure, is this: “Rule 1 of the Federal Rules of Civil Procedure frames the purpose of the Rules: ‘the just, speedy and inexpensive determination of every action and proceeding.’ Every day, corporate and defense counsel must confront the fact that although well‐intentioned, the Rules are falling far short of this goal. The reality is that the high transaction costs of litigation, and in particular the costs of discovery, threaten to exceed the amount at issue in all but the largest cases.”
The proposed amendments would make several changes, all centered around these themes: effective judicial case management, proportionality, and cooperation. Case management changes would include requiring conferences with the Court before filing discovery motions, shortening the time to serve complaints (from 120 to 60 days), and reducing the deadline for entry of scheduling orders. “Proportionality” would be served by placing at the front of Rule 26(b)(1) a requirement that discovery be “proportionate to the needs of the case considering the amount in controversy, the importance of the discovery in resolving the issues, and whether the burden and expense of the proposed discovery outweighs its likely benefit.” In addition, presumptive numbers of depositions would be reduced to five and their presumptive maximum length reduced to six hours; presumptive caps on interrogatories would be reduced to 15. “Cooperation” would be encouraged by amending Rule 1 to require all parties to share responsibility for achieving the aspirations of the Rule.
If approved by the Standing Committee on Rules of Practice and Procedure, the proposed amendments will be submitted to the Judicial Conference with a recommendation for approval, which in turn submits the proposals to the Supreme Court. If approved by the Supreme Court, Congress has seven months to approve or reject the new rules. The revised rules would be officially promulgated on or before May 1, 2014, and take effect on or after December 1, 2014.