CCL Senior Litigation Counsel Valerie Nannery attended the April 10 and 11 meeting in Portland, Oregon of the Advisory Committee on Civil Rules, which develops civil rules proposals for the  Judicial Conference of the United States. The most recent round of proposals, which were approved at the meeting, focuses largely on the rules governing discovery. The package, put out for public comment last August, generated a record 2,300 comments and significant controversy.  At the Portland meeting, and in response to the comments, the Advisory Committee voted unanimously to withdraw proposed presumptive limits to the number of depositions, interrogatories, and requests for admission. In addition, revisions of a proposal that would add a requirement of proportionality to the rule governing the scope of discovery were approved. In the newly approved version, the “amount in controversy” factor no longer is listed first, in order to deemphasize the factor, and a new factor – the “parties’ relative access to relevant information” was added to address situations where the defendant has the only access to information essential to the plaintiffs’ case. An expanded Committee Note, which is intended to guide courts in implementing the rule, explains that the use of the term “proportionality” within the rule is merely an attempt to reflect existing requirements without changing the scope of discovery. The Advisory Committee indicated that the changes improved the proposed rule and were a product of the incisive comments received from practitioners. Finally, the Advisory Committee approved a substantially rewritten rule governing a party’s failure to preserve electronically maintained information.

The approved proposals will next be reviewed at a meeting at a meeting of the Standing Committee in May. If that committee approves, it then moves on to the Judicial Conference, which meets in September.