longandwindingAs we discussed in an August 15 post, the long and winding road to amending the Federal Rules of Civil Procedure began that day when an Advisory Committee on Civil Rules of the Judicial Conference of the United States began taking comments on its proposal. The amendments focus most prominently on changing what documents are “discoverable” and how judges determine sanctiosn for parties who allegedly fail to preserve documents.

In a WLF Counsel’s Advisory published last week, GlaxoSmithKline Assistant General Counsel Leah Lorber urged interested parties to file comments with the Advisory Committee, which are due by February 15, 2014.

Yesterday, Washington Legal Foundation filed its formal comments with the Advisory Committee.  WLF Senior Litigation Counsel Cory Andrews has requested an opportunity to testify before the Committee during its hearing in Washington, D.C. on November 7.

Our comments frame the challenges the discovery process pose today for those who are subject to and must manage civil litigation:

The potency of discovery as a leverage weapon has intensified in the past two decades with the explosion of electronic data. The nature of such data, which can be easily and unintentionally deleted, has also given rise to so-called spoliation claims, where one litigant accuses the other of document destruction and urges courts to sanction the alleged offender. The outside costs of litigation for American businesses over the past decade have steadily grown. These costs are disproportionately high in the United States versus the rest of the world.

The comments specifically call on the Advisory Committee to:

  • Amend proposed Rule 37(e) to eliminate a stated exception that can swallow the Rule; alter the conduct trigger for sanctions from “willful or in bad faith” to “willful and in bad faith”; move the list of factors to be assessed when evaluating conduct from the Rule to the Committee Note; clarify the standard for when parties must preserve documents; and clarify the prejudice standard that judges will use to impose “curative measures” under the Rule.
  • Require that under proposed Rule 26(b)(1), the scope of discovery be “any non-privileged matter that is relevant
    and material to any party’s claim or defense.”
  • For Rules governing the presumptive numerical limits on discovery devices (depositions, interrogatories, etc.), consider limiting discovery to five “custodians” in the first instance, chosen by the requesting party, and then five more in the second instance; any further discovery would require a showing of good cause.
  • Eliminate, as proposed, Rule 84, which through sample forms such as Form 18 used for patent litigation, elevate antiquated requirements over current Supreme Court precedents on pleading standards. In addition, the Committee should add a Committee Note for the Rule on pleading standards, Rule 8, to acknowledge those recent Court precedents.