The federal judiciary last week proposed fundamentally altering the rules that have governed discovery and evidence preservation in litigation since 1938, radically constraining the ability to ferret out corporate and governmental wrongdoing in litigation. CCL has monitored and attended the meetings and conferences where judicial committees have discussed these issues.

At last week's meeting, the Judicial Conference's Committee on Practice and Procedure (the standing committee) approved for public comment proposed amendments to the federal rules of civil procedure that would constrain the scope of discovery and limit the duties of corporations to preserve evidence.

“The rulemakers themselves describe these changes as radical," said CCL attorney John Vail, who attended the meeting. “Despite acknowledging that in the vast majority of cases discovery is working well, they propose changes that are tailored to a small fraction of cases without regard to the burdens placed on average people."

The rules would:

  • Limit the scope of discovery, eliminating language that made clear that a plaintiff had a right to get information that could lead to evidence admissible at trial even if the information itself were not admissible;
  • Require a plaintiff to prove that requested information is “proportional” to the needs of a case;
  • Reduce the number of depositions and written requests for discovery that a plaintiff presumptively is entitled to employ;
  • Emphasize the ability of courts to impose on plaintiffs the costs of responding to information requests; and, 
  • Limit the duties of corporations to preserve evidence.

The new rules focus on litigation between large corporate entities as if those cases are typical of federal litigation. "In a very real way,” Vail continued, “these proposals say that there are entities too big to be sued.”  Experience shows that what is adopted at the federal level often filters down to the states and become embedded in state rules of civil procedure.

The proposals are expected to be published August 15th for public comment. the committees would then accept written comments through February 15, 2014.  One public hearing on the proposal has been scheduled for November 7th in Washington.  Two additional hearings are expected to be announced.