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Tuesday, February 04, 2014

Proposed Changes to Federal Discovery Rules

The Federal Judiciary’s Civil Rules Advisory Committee (the “Rules Committee”) is currently accepting public comments on a package of proposed amendments to the Federal Rules of Civil Procedure. Some of the most important changes in the package are aimed at reducing the cost and burdens associated with discovery.

 

As former U.S. Senator Jon Kyl explained in a recent Wall Street Journal Editorial:

 

The three most important committee proposals are: (1) a clear national standard that says companies could be punished for discarding information only if they did so in bad faith to hamper litigation; (2) a narrower scope of discovery that focuses on the claims and defenses of each case rather than any information that might lead to admissible evidence; and (3) confirming judicial authority under Rule 26(c) of the Federal Rules of Civil Procedure to allocate the costs of discovery to the party requesting discovery rather than the party responding. A "requester-pays" system lets a party decide to pay and get certain information if it really needs it. It also eliminates the temptation to make overly broad requests to impose costs on the other side to coerce a settlement.

 

If approved, these changes would be a first step toward significantly reducing litigation costs and trial delays. As such, the New Jersey Civil Justice Institute is developing comments in support of the proposed changes, and will be submitting them to the Rules Committee for its consideration. We urge you to do the same. Most of the comments received thus far have been provided by the plaintiffs' bar, which is generally critical of the proposed amendments as favoring defendants and corporations.

 

Comments must be submitted by 11:59 PM ET on February 15, 2014. Click here and then scroll to the bottom of the page for instructions on how to submit comments.

 

If approved by the Rules Committee, the proposed amendments will be submitted to the Judicial Conference with a recommendation for approval, who in turn submits the proposals to the Supreme Court. If approved by the Supreme Court, Congress has seven months to approve or reject the new rules.

 

Additional Resources:

Draft Rules & Request for Comments

Comments Submitted via Regulations.gov

The 2013 “Package” of Federal Discovery Rule Amendments: Thomas Y. Allman, Jan. 30, 2014. Mr. Allman is a former General Counsel and currently serves as an Adjunct Professor at the University of Cincinnati College Of Law.   He is Chair Emeritus of the Sedona Conference WG 1 on E-Discovery and a former Chair of the E-Discovery Committee of Lawyers for Civil Justice.

A Rare Chance to Lower Litigation Costs (Opinion by Former Sen. Kyl): The Wall Street Journal, Jan. 20, 2014.

Archive of selected news articles on the rule change provided by Lawyers for Civil Justice

Lawyers for Civil Justice Briefing Points on Proposed FRCP Changes 1.3.14

Lawyers for Civil Justice Backgrounder - Proposed FRCP Changes

Lawyers for Civil Justice Backgrounder - The FRCP Rulemaking Process

 

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