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Federal discovery and the big proposed changes on the horizon

October 16, 2013

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Proposed amendments to the Federal Rules of Civil Procedure will, if enacted, have a significant impact on discovery in the federal courts. The amendments were proposed in April 2013 by the Judicial Conference of the United States’ Advisory Committee on Civil Rules. In June 2013, they were approved for public comment by the Conference’s Standing Committee on Rules of Practice and Procedure.

The proposal would rein in the “kitchen sink” approach to discovery that’s commonly used today, under which virtually any nonprivileged evidence is discoverable. Currently, Rule 26(b)(1) allows discovery of items “reasonably calculated to lead to the discovery of admissible evidence.” This standard can place an enormous burden on litigants, particularly in cases that involve large amounts of electronically stored information.

The proposed amendments would replace this standard with one that permits and encourages responsible use of discovery that’s “proportional to the reasonable needs of the case.”

Proportionality would be determined by considering “the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

The proposed amendments would limit sanctions for failure to preserve discoverable evidence, except in cases involving willfulness or bad faith. They would also:

•    Reduce the number of interrogatories allowed from 25 to 15,
•    Reduce the number of depositions allowed from 10 to five,
•    Reduce the deposition time limit from seven to six hours, and
•    Limit requests for production and requests for admissions to 25.

There would continue to be exceptions to these limits for parties that show good cause.

If adopted, the amendments will require you to develop targeted discovery requests designed to elicit relevant information. The kitchen sink approach would no longer suffice. Fortunately, you have time to prepare for the changes. The earliest the final rules will take effect is December 2015.

For more information contact Kent Pummel at [email protected]

All content provided in this article is for informational purposes only. Matters discussed in this article are subject to change. For up-to-date information on this subject please contact a Clark Schaefer Hackett professional. Clark Schaefer Hackett will not be held responsible for any claim, loss, damage or inconvenience caused as a result of any information within these pages or any information accessed through this site.

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