This past Friday, two CCL attorneys, Andre M. Mura and Valerie M. Nannery, filed comments opposing most of the proposed amendments to the Federal Rules of Civil Procedure, which were published for public comment on August 15, 2013. Mr. Mura’s and Ms. Nannery’s comments encourage the Committee on Rules of Practice and Procedure to reconsider the majority of the proposed amendments, and highlight a few specific proposals that are especially problematic.

The proposed amendments to Rule 26(b)(1) would eliminate language that has been in the rule and understood by litigants and courts since 1946. The proposals would also add a “proportionality” analysis to the definitions of the scope of discovery, rather retain it in Rule 26(b)(2)(C)(iii), as one of several limitations on the scope of discovery. These changes have troubled commenters and witnesses because they redefine the scope of discovery and are explicitly intended to narrow it. CCL’s comments explain that restricting the scope of discovery will only harm plaintiffs who seek evidence to support their claims, and will thwart access to justice. CCL suggests that the Committee leave the “proportionality” analysis where it is in current Rule 26(b), and instead explicitly reference it in Rule 16, and require that the proportionality concept be made a part of judicial management. 

CCL’s comment also highlighted problems with the proposed amendments to Rules 4(m) Service of Process, 37(e) Failure to Preserve Discoverable Information, and the abrogation of Rule 84 and most of the Forms.

You can read CCL’s recently-filed comments here:!documentDetail;D=USC-RULES-CV-2013-0002-1535

The closing of the comment period on the proposed Rule changes was extended to tonight, February 18, 2014 at 11:59pm EST. Comments may be submitted electronically here.

Previous coverage of this issue can be found here and here on November 7, 2013, and on June 10, 2013, and April 17, 2013.