http://www.lfcj.com/uploads/3/8/0/5/38050985/rules_committee_memo_re_frcp_amendments.pdf
COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
OF THE
JUDICIAL CONFERENCE OF THE UNITED STATES
WASHINGTON, D.C. 20544
JEFFREY S. SUTTON CHAIRS OF ADVISORY COMMITTEES
CHAIR
STEVEN M. COLLOTON
JONATHAN C. ROSE APPELLATE RULES
SECRETARY
EUGENE R. WEDOFF
BANKRUPTCY RULES
DAVID G. CAMPBELL
CIVIL RULES
REENA RAGGI
CRIMINAL RULES
SIDNEY A. FITZWATER
EVIDENCE RULES
MEMORANDUM
TO: Judge Jeffrey Sutton
Chair, Standing Committee on Rules of Practice and Procedure
FROM: Judge David G. Campbell
Chair, Advisory Committee on Federal Rules of Civil Procedure
RE: Proposed Amendments to the Federal Rules of Civil Procedure
DATE: June 14, 2014
Over the course of the last four years, the Advisory Committee on the Federal Rules of
Civil Procedure has developed, published, and refined a set of proposed amendments that will
implement conclusions reached at a May 2010 Conference on Civil Litigation held at Duke
University Law School. The Committee has also proposed and published amendments that
would abrogate Rule 84 and the forms appended to the civil rules, and make a modest change to
Rule 55. Final versions of the proposals were approved unanimously by the Committee at its
meeting in Portland, Oregon on April 10-11, 2014, and approved unanimously by the Standing
Committee at its meeting in Washington, D.C. on May 29-30, 2014.
This report explains the proposed amendments. The text of the proposed rules and the
proposed Advisory Committee Notes immediately follow this report. The Committee
respectfully requests that you forward the proposed amendments for consideration by the Judicial
Conference, the Supreme Court, and Congress.
I. THE DUKE CONFERENCE.
The 2010 Duke Conference was organized by the Committee for the specific purpose of
examining the state of civil litigation in federal courts and exploring better means to achieve
Rule 1’s goal of the just, speedy, and inexpensive determination of every action. The Committee
invited 200 participants to attend, and all but one accepted. Participants were selected to ensure
diverse views and expertise, and included trial and appellate judges from federal and state courts;
plaintiff, defense, and public interest lawyers; in-house counsel from governments and
corporations; and many law professors. Empirical studies were conducted in advance of the
conference by the Federal Judicial Center (“FJC”), bar associations, private and public interest
research groups, and academics. More than seventy judges, lawyers, and academics made
presentations to the conference, followed by a broad-ranging discussion among all participants.
The Conference was streamed live by the FJC.
The conference planning committee and its chair, Judge John Koeltl of the Southern
District of New York, spent more than one year assembling the panels and commissioning,
coordinating, and reviewing the empirical studies and papers. Materials prepared for the
Conference can be found at http://www.uscourts.gov, and include more than 40 papers, 80
presentations, and 25 compilations of empirical research. The Duke Law Review published
some of the papers in Volume 60, Number 3 (December 2010).
The Conference concluded that federal civil litigation works reasonably well –major
restructuring of the system is not needed. There was near-unanimous agreement, however, that
the disposition of civil actions could be improved by advancing cooperation among parties,
proportionality in the use of available procedures, and early judicial case management. A panel
on e-discovery unanimously recommended that the Committee draft a rule to deal with the
preservation and loss of electronically stored information (“ESI”).
Following the conference, the Committee created a Duke Subcommittee, chaired by
Judge Koeltl, to consider recommendations made during the Duke Conference. The Committee
also assigned the existing Discovery Subcommittee to draft a rule addressing the preservation
and loss of ESI. The work of these subcommittees led to two categories of proposed
amendments discussed below: the Duke proposals drafted by the Duke Subcommittee, and
proposed new Rule 37(e) drafted by the Discovery Subcommittee. The proposed abrogation of
Rule 84 and the proposed amendment to Rule 55 were developed independently of the Duke
Conference initiatives.
This report will discuss separately the Duke proposals, proposed Rule 37(e), the
abrogation of Rule 84, and the amendment to Rule 55. Additional insight can be gained by
reviewing the proposed rule language and committee notes in the Appendix.
II. THE DUKE PROPOSALS.
In a report to the Chief Justice following the Duke Conference, the Committee provided
this summary of key conference conclusions: “What is needed can be described in two words –
cooperation and proportionality – and one phrase – sustained, active, hands-on judicial case
management.” Since the conference, the Committee and others have sought to promote
cooperation, proportionality, and active judicial case management through several means.
First, the FJC has sought to develop enhanced education programs. Among other
measures, in 2013 the FJC published a new Benchbook for Federal District Court Judges with a
new, comprehensive chapter on judicial case management written with substantial input from
members of the Committee and the Standing Committee.
Second, the Committee and the National Employment Lawyers Association (“NELA”)
worked cooperatively with the Institute for Advancement of the American Legal System
(“IAALS”) to develop protocols for initial disclosures in employment cases. The protocols were
developed by a team of experienced plaintiff and defense lawyers and include substantial
mandatory disclosures required of both sides at the beginning of employment cases. The
protocols are now being used by more than 50 federal district judges. The FJC and the
Committee intend to monitor this pilot program and other innovative changes made in several
state and federal courts.
Third, the Committee developed proposed rule amendments through the Duke
Subcommittee. The Subcommittee began with a list of proposals made at the Duke Conference
and held numerous conference calls, circulated drafts of proposed rules, and sponsored a mini-
conference with 25 invited judges, lawyers, and law professors to discuss possible rule
amendments. The Subcommittee presented recommendations for full discussion by the
Committee and the Standing Committee during meetings held in 2011, 2012, and 2013.
The proposed Duke amendments were published as a package in August 2013 along with
the other proposed amendments discussed in this report. More than 2,300 written comments
were received and more than 120 witnesses appeared and addressed the Committee in public
hearings held in Washington, D.C., Phoenix, and Dallas. Following the public comment process,
the Subcommittee withdrew some proposals, amended others, and proposed the package of
amendments discussed below.
We believe that this process has resulted in fully-informed rulemaking at its best. The
original Duke Conference, the lengthy and detailed deliberations of the Duke Subcommittee, the
mini-conference held by the Subcommittee, repeated reviews of the proposals by the full
Committee and the Standing Committee, and the vigorous public comment process have
provided a sound basis for proposing changes to the civil rules.
Rather than discuss the proposed Duke amendments in numerical rule order, this report
will address the discovery proposals, followed by proposals on judicial case management and
cooperation.
A. Discovery Proposals.
1. Withdrawn Proposals.
The proposals published last August sought to encourage more active case management
and advance the proportional use of discovery by amending the presumptive numerical limits on
discovery. The intent was to promote efficiency and prompt a discussion early in each case about
the amount of discovery needed to resolve the dispute. Under these proposals, Rules 30 and 31
would have been amended to reduce from 10 to 5 the presumptive number of depositions
permitted for plaintiffs, defendants, and third-party defendants; Rule 30(d) would have been
amended to reduce the presumptive time limit for an oral deposition from 7 hours to 6 hours;
Rule 33 would have been amended to reduce from 25 to 15 the presumptive number of
interrogatories a party may serve on any other party; and a presumptive limit of 25 would have
been introduced for requests to admit under Rule 36, excluding requests to admit the genuineness
of documents.
These proposals received some support in the public comment process, but they also
encountered fierce resistance. Many expressed fear that the new presumptive limits would
become hard limits in some courts and would deprive parties of the evidence needed to prove
their claims or defenses. Some asserted that many types of cases, including cases that seek
relatively modest monetary recoveries, require more than 5 depositions. Fears were expressed
that opposing parties could not be relied upon to recognize and agree to the reasonable number
needed; that agreement among the parties might require unwarranted trade-offs in other areas;
and that the showing now required to justify an 11th or 12th deposition would be needed to
justify a 6th or 7th deposition, reducing the overall number of depositions permitted under the
rules.
After reviewing the public comments, the Subcommittee and Committee decided to
withdraw these recommendations. The intent of the proposals was never to limit discovery
unnecessarily, but many worried that the changes would have that effect. The Committee
concluded that it could promote the goals of proportionality and effective judicial case
management through other proposed rule changes, such as the renewed emphasis on
proportionality and steps to promote earlier and more informed case management, without
raising the concerns spawned by the new presumptive limits.
2. Amendments to Rule 26(b)(1): Four Elements.
The proposed amendments to Rule 26(b)(1) include four elements: (1) the factors
included in present Rule 26(b)(2)(C)(iii) are moved up to become part of the scope of discovery
in Rule 26(b)(1), identifying elements to be considered in determining whether discovery is
proportional to the needs of the case; (2) language regarding the discovery of sources of
information is removed as unnecessary; (3) the distinction between discovery of information
relevant to the parties’ claims or defenses and discovery of information relevant to the subject
matter of the action, on a showing of good cause, is eliminated; (4) the sentence allowing
discovery of information “reasonably calculated to lead to the discovery of admissible evidence”
is rewritten. Each proposal will be discussed separately.
a. Scope of Discovery: Proportionality.
There was widespread agreement at the Duke Conference that discovery should be
proportional to the needs of the case, but subsequent discussions at the mini-conference
sponsored by the Subcommittee revealed significant discomfort with simply adding the word
“proportional” to Rule 26(b)(1). Standing alone, the phrase seemed too open-ended, too
dependent on the eye of the beholder. To provide clearer guidance, the Subcommittee
recommended that the factors already prescribed by Rule 26(b)(2)(C)(iii), which currently are
incorporated by cross-reference in Rule 26(b)(1), be relocated to Rule 26(b)(1) and included in
the scope of discovery. Under this amendment, the first sentence of Rule 26(b)(1) would read as
follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, 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.1
This proposal produced a division in the public comments. Many favored the proposal.
They asserted that costs of discovery in civil litigation are too often out of proportion to the
issues at stake in the litigation, resulting in cases not being filed or settlements made to avoid
litigation costs regardless of the merits. They stated that disproportionate litigation costs bar
many from access to federal courts and have resulted in a flight to other dispute resolution fora
such as arbitration. They noted that the proportionality factors currently found in Rule
26(b)(2)(C)(iii) often are overlooked by courts and litigants, and that the proposed relocation of
those factors to Rule 26(b)(1) will help achieve the just, speedy, and inexpensive determination
of every action.
Many others saw proportionality as a new limit that would favor defendants. They
criticized the factors from Rule 26(b)(2)(C)(iii) as subjective and so flexible as to defy uniform
application. They asserted that “proportionality” will become a new blanket objection to all
discovery requests. They were particularly concerned that proportionality would impose a new
burden on the requesting party to justify each and every discovery request. Some argued that the
proposed change is a solution in search of a problem – that discovery in civil litigation already is
proportional to the needs of cases.
After considering these public comments carefully, the Committee remains convinced
that transferring the Rule 26(b)(2)(C)(iii) factors to the scope of discovery, with some
1
The current version of this language in Rule 26(b)(2)(C)(iii) reads as follows: “On
motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed
by these rules or by local rule if it determines that: . . . (iii) the burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.”
modifications as described below, will improve the rules governing discovery. The Committee
reaches this conclusion for three primary reasons.
Findings from the Duke Conference.
As already noted, a principal conclusion of the Duke Conference was that discovery in
civil litigation would more often achieve the goals of Rule 1 through an increased emphasis on
proportionality. This conclusion was expressed often by speakers and panels at the conference
and was supported by a number of surveys. In its report to the Chief Justice, the Committee
observed that “[o]ne area of consensus in the various surveys . . . was that district or magistrate
judges must be considerably more involved in managing each case from the outset, to tailor the
motions practice and shape the discovery to the reasonable needs of the case.”
The FJC prepared a closed-case survey for the Duke Conference. The survey questioned
lawyers in 3,550 cases terminated in federal district courts for the last quarter of 2008. Although
the survey found that a majority of lawyers thought the discovery in their case generated the
“right amount” of information, and more than half reported that the costs of discovery were the
“right amount” in proportion to their clients’ stakes in the case, a quarter of attorneys viewed
discovery costs in their cases as too high relative to their clients’ stakes in the case. A little less
than a third reported that discovery costs increased or greatly increased the likelihood of
settlement, or caused the case to settle, with that number increasing to 35.5% of plaintiff
attorneys and 39.9% of defendant attorneys in cases that actually settled. On the question of
whether the cost of litigating in federal court, including the cost of discovery, had caused at least
one client to settle a case that would not have settled but for the cost, those representing primarily
defendants and those representing both plaintiffs and defendants agreed or strongly agreed 58.2%
and 57.8% of the time, respectively, and those representing primarily plaintiffs agreed or strongly
agreed 38.6% of the time. The FJC study revealed agreement among lawyers representing
plaintiffs and defendants that the rules should be revised to enforce discovery obligations more
effectively.
Other surveys prepared for the Duke Conference showed greater dissatisfaction with the
costs of civil discovery. In surveys of lawyers from the American College of Trial Lawyers
(“ACTL”), the ABA Section of Litigation, and NELA, more lawyers agreed than disagreed with
the proposition that judges do not enforce Rule 26(b)(2)(C) to limit discovery. The ACTL Task
Force on Discovery and IAALS reported on a survey of ACTL fellows, who generally tend to be
more experienced trial lawyers than those in other groups. A primary conclusion from the survey
was that today’s civil litigation system takes too long and costs too much, resulting in some
deserving cases not being filed and others being settled to avoid the costs of litigation. Almost
half of the ACTL respondents believed that discovery is abused in almost every case, with
responses being essentially the same for both plaintiff and defense lawyers. The report reached
this conclusion: “Proportionality should be the most important principle applied to all
discovery.”
Surveys of ABA Section of Litigation and NELA attorneys found more than 80%
agreement that discovery costs are disproportionately high in small cases, with more than 40% of
respondents saying they are disproportionate in large cases. In the survey of the ABA Section of
Litigation, 78% percent of plaintiffs’ attorneys, 91% of defense attorneys, and 94% of mixed-
practice attorneys agreed that litigation costs are not proportional to the value of small cases, with
33% of plaintiffs’ lawyers, 44% of defense lawyers, and 41% of mixed-practice lawyers agreeing
that litigation costs are not proportional in large cases. In the NELA survey, which included
primarily plaintiffs’ lawyers, more than 80% said that litigation costs are not proportional to the
value of small cases, with a fairly even split on whether they are proportional to the value of large
cases. An IAALS survey of corporate counsel found 90% agreement with the proposition that
discovery costs in federal court are not generally proportional to the needs of the case, and 80%
disagreement with the suggestion that outcomes are driven more by the merits than by costs. In
its report summarizing the results of some of the Duke empirical research, IAALS noted that
between 61% and 76% of the respondents in the ABA, ACTL, and NELA surveys agreed that
judges do not enforce the rules’ existing proportionality limitations on their own.
The History of Proportionality in Rule 26.
The proportionality factors to be moved to Rule 26(b)(1) are not new. Most of them were
added to Rule 26 in 1983 and originally resided in Rule 26(b)(1). The Committee’s original
intent was to promote more proportional discovery, as made clear in the 1983 Committee Note
which explained that the change was intended “to guard against redundant or disproportionate
discovery by giving the court authority to reduce the amount of discovery that may be directed to
matters that are otherwise proper subjects of inquiry,” and “to encourage judges to be more
aggressive in identifying and discouraging discovery overuse.” The 1983 amendments also
added Rule 26(g), which now provides that a lawyer’s signature on a discovery request,
objection, or response constitutes a certification that it is “neither unreasonable nor unduly
burdensome or expensive, considering the needs of the case, prior discovery in the case, the
amount in controversy, and the importance of the issues at stake in the action.” The 1983
amendments thus made proportionality a consideration for courts in limiting discovery and for
lawyers in issuing and responding to discovery requests.
The proportionality factors were moved to Rule 26(b)(2)(C) in 1993 when section (b)(1)
was divided, but their constraining influence on discovery remained important in the eyes of the
Committee. The 1993 amendments added two new factors: whether “the burden or expense of
the proposed discovery outweighs its likely benefit,” and “the importance of the proposed
discovery in resolving the issues.” The 1993 Committee Note stated that “[t]he revisions in Rule
26(b)(2) are intended to provide the court with broader discretion to impose additional
restrictions on the scope and extent of discovery[.]”
The proportionality factors were again addressed by the Committee in 2000.
Rule 26(b)(1) was amended to state that “[a]ll discovery is subject to the limitations imposed by
Rule 26(b)(2)(i), (ii), and (iii) [now Rule 26(b)(2)(C)].” The 2000 Committee Note explained
that courts were not using the proportionality limitations as originally intended, and that “[t]his
otherwise redundant cross-reference has been added to emphasize the need for active judicial use
of subdivision (b)(2) to control excessive discovery.”
As this summary illustrates, three previous Civil Rules Committees in three different
decades have reached the same conclusion as the current Committee – that proportionality is an
important and necessary feature of civil litigation in federal courts. And yet one of the primary
conclusions of comments and surveys at the 2010 Duke Conference was that proportionality is
still lacking in too many cases. The previous amendments have not had their desired effect. The
Committee’s purpose in returning the proportionality factors to Rule 26(b)(1) is to make them an
explicit component of the scope of discovery, requiring parties and courts alike to consider them
when pursuing discovery and resolving discovery disputes.
Adjustments to the 26(b)(1) Proposal.
The Committee considered carefully the concerns expressed in public comments: that the
move will shift the burden of proving proportionality to the party seeking discovery, that it will
provide a new basis for refusing to provide discovery, and that it will increase litigation costs.
None of these predicted outcomes is intended, and the proposed Committee Note has been
revised to address them. The Note now explains that the change does not place a burden of
proving proportionality on the party seeking discovery and explains how courts should apply the
proportionality factors. The Note also states that the change does not authorize boilerplate
refusals to provide discovery on the ground that it is not proportional, but should instead prompt
a dialogue among the parties and, if necessary, the court, concerning the amount of discovery
reasonably needed to resolve the case. The Committee remains convinced that the
proportionality considerations will not increase the costs of litigation. To the contrary, the
Committee believes that more proportional discovery will decrease the cost of resolving disputes
without sacrificing fairness.
In response to public comments, the Committee also reversed the order of the initial
proportionality factors to refer first to “the importance of the issues at stake” and second to “the
amount in controversy.” This rearrangement adds prominence to the importance of the issues
and avoids any implication that the amount in controversy is the most important concern. The
Committee Note was also expanded to emphasize that courts should consider the private and
public values at issue in the litigation – values that cannot be addressed by a monetary award.
The Note discussion draws heavily on the Committee Note from 1983 to show that, from the
beginning, the rule has been framed to recognize the importance of nonmonetary remedies and to
ensure that parties seeking such remedies have sufficient discovery to prove their cases.
Also in response to public comments, the Committee added a new factor: “the parties’
relative access to relevant information.” This factor addresses the reality that some cases involve
an asymmetric distribution of information. Courts should recognize that proportionality in
asymmetric cases will often mean that one party must bear greater burdens in responding to
discovery than the other party bears.
With these adjustments, the Committee believes that moving the factors from
Rule 26(b)(2)(C) to Rule 26(b)(1) will satisfy the need for proportionality in more civil cases, as
identified in the Duke Conference, while avoiding the concerns expressed in some public
comments.
b. Discovery of Information in Aid of Discovery.
Rule 26(b)(1) now provides that discoverable matters include “the existence, description,
nature, custody, condition, and location of any documents or other tangible things and the
identity and location of persons who know of any discoverable matter.” The Committee believes
that these words are no longer necessary. The discoverability of such information is well
established. Because Rule 26 is more than twice as long as the next longest civil rule, the
Committee believes that removing excess language is a positive step.
Some public comments expressed doubt that discovery of these matters is so well
entrenched that the language is no longer needed. They urged the Committee to make clear in
the Committee Note that this kind of discovery remains available. The Note has been revised to
make this point.
c. Subject-Matter Discovery.
Before 2000, Rule 26(b)(1) provided for discovery of information “relevant to the subject
matter involved in the pending action, whether it relates to the claim or defense of the party
seeking discovery or to the claim or defense of any other party.” Responding to repeated
suggestions that discovery should be confined to the parties’ claims or defenses, the Committee
amended Rule 26(b)(1) in 2000 to narrow the scope of discovery to matters “relevant to any
party’s claim or defense,” but preserved subject-matter discovery upon a showing of good cause.
The 2000 Committee Note explained that the change was “designed to involve the court more
actively in regulating the breadth of sweeping or contentious discovery.”
The Committee proposes that the reference to broader subject matter discovery, available
upon a showing of good cause, be deleted. In the Committee's experience, the subject matter
provision is virtually never used, and the proper focus of discovery is on the claims and defenses
in the litigation.
Only a small portion of the public comments addressed this proposal, with a majority
favoring it. The Committee Note includes three examples from the 2000 Note of information
that would remain discoverable as relevant to a claim or defense: other incidents similar to those
at issue in the litigation, information about organizational arrangements or filing systems, and
information that could be used to impeach a likely witness. The Committee Note also recognizes
that if discovery relevant to the pleaded claims or defenses reveals information that would
support new claims or defenses, the information can be used to support amended pleadings.
d. “Reasonably calculated to lead.”
The final proposed change in Rule 26(b)(1) deletes the sentence which reads: “Relevant
information need not be admissible at the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence.” The proposed amendment would replace this
sentence with the following language: “Information within this scope of discovery need not be
admissible in evidence to be discoverable.”
This change is intended to curtail reliance on the “reasonably calculated” phrase to define
the scope of discovery. The phrase was never intended to have that purpose. The “reasonably
calculated” language was added to the rules in 1946 because parties in depositions were objecting
to relevant questions on the ground that the answers would not be admissible at trial.
Inadmissibility was used to bar relevant discovery. The 1946 amendment sought to stop this
practice with this language: “It is not ground for objection that the testimony will be inadmissible
at the trial if the testimony sought appears reasonably calculated to lead to the discovery of
admissible evidence.”
Recognizing that the sentence had this original intent and was never designed to define
the scope of discovery, the Committee amended the sentence in 2000 to add the words “relevant
information” at the beginning: “Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” The
Committee Note explained that “relevant means within the scope of discovery as defined in this
subdivision [(b)(1)].” Thus, the “reasonably calculated” phrase applies only to information that
is otherwise within the scope of discovery set forth in Rule 26(b)(1); it does not broaden the
scope of discovery. As the 2000 Committee Note explained, any broader reading of “reasonably
calculated” “might swallow any other limitation on the scope of discovery.”
Despite the original intent of the sentence and the 2000 clarification, lawyers and courts
continue to cite the “reasonably calculated” language as defining the scope of discovery. Some
even disregard the reference to admissibility, suggesting that any inquiry “reasonably calculated”
to lead to something helpful in the litigation is fair game in discovery. The proposed amendment
will eliminate this incorrect reading of Rule 26(b)(1) while preserving the rule that
inadmissibility is not a basis for opposing discovery of relevant information.
Most of the comments opposing this change complained that it would eliminate a
“bedrock” definition of the scope of discovery, reflecting the very misunderstanding the
amendment is designed to correct.
3. Rule 26(b)(2)(C)(iii).
Rule 26(b)(2)(C)(iii) would be amended to reflect the move of the proportionality factors
to Rule 26(b)(1).
4. Rule 26(c)(1): Allocation of Expenses.
Rule 26(c)(1)(B) would be amended to include “the allocation of expenses” among the
terms that may be included in a protective order. Rule 26(c)(1) already authorizes an order to
protect against “undue burden or expense,” and this includes authority to allow discovery only on
condition that the requesting party bear part or all of the costs of responding. The Supreme Court
has acknowledged that courts have that authority now, Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 358 (1978), and it is useful to make the authority explicit on the face of the rule to
ensure that courts and the parties will consider this choice as an alternative to either denying
requested discovery or ordering it despite the risk of imposing undue burdens and expense on the
party who responds to the request.
The Committee Note explains that this clarification does not mean that cost-shifting
should become a common practice. The assumption remains that the responding party ordinarily
bears the costs of responding.
5. Rules 34 and 37(a): Specific Objections, Production, Withholding.
The Committee proposes three amendments to Rule 34. (A fourth, dealing with requests
served before the Rule 26(f) conference, is described later.) The first requires that objections to
requests to produce be stated “with specificity.” The second permits a responding party to state
that it will produce copies of documents or ESI instead of permitting inspection, and should
specify a reasonable time for the production. A corresponding change to Rule 37(a)(3)(B)(iv)
adds authority to move for an order to compel production if “a party fails to produce documents”
as requested. The third amendment to Rule 34 requires that an objection state whether any
responsive materials are being withheld on the basis of the objection.
These amendments should eliminate three relatively frequent problems in the production
of documents and ESI: the use of broad, boilerplate objections that provide little information
about the true reason a party is objecting; responses that state various objections, produce some
information, and do not indicate whether anything else has been withheld from discovery on the
basis of the objections; and responses which state that responsive documents will be produced in
due course, without providing any indication of when production will occur and which often are
followed by long delays in production. All three practices lead to discovery disputes and are
contrary to Rule 1’s goals of speedy and inexpensive litigation.
6. Early Discovery Requests: Rule 26(d)(2).
The Committee proposes to add Rule 26(d)(2) to allow a party to deliver a Rule 34
document production request before the Rule 26(f) meeting between the parties. For purposes of
determining the date to respond, the request would be treated as having been served at the first
Rule 26(f) meeting. Rule 34(b)(2)(A) would be amended by adding a parallel provision for the
time to respond. The purpose of this change is to facilitate discussion between the parties at the
Rule 26(f) meeting and with the court at the initial case management conference by providing
concrete discovery proposals.
Public comments on this proposal were mixed. Some doubt that parties will seize this
new opportunity. Others expressed concern that requests formed before the case management
conference will be inappropriately broad. Lawyers who represent plaintiffs appeared more likely
to use this opportunity to provide advance notice of what should be discussed at the Rule 26(f)
meeting. The Committee continues to view this amendment as a worthwhile effort to focus early
case management discussions.
B. Early Judicial Case Management.
The Committee recommends several changes to Rules 16 and 4 designed to promote
earlier and more active judicial case management.
1. Rule 16.
Four sets of changes are proposed for Rule 16.
First, participants at the Duke Conference agreed that cases are resolved faster, fairer, and
with less expense when judges manage them early and actively. An important part of this
management is an initial case management conference where judges confer with parties about the
needs of the case and an appropriate schedule for the litigation. To encourage case management
conferences where direct exchanges occur, the Committee proposes that the words allowing a
conference to be held “by telephone, mail, or other means” be deleted from Rule 16(b)(1)(B).
The Committee Note explains that such a conference can be held by any means of direct
simultaneous communication, including telephone. Rule 16(b)(1)(A) continues to allow the
court to base a scheduling order on the parties’ Rule 26(f) report without holding a conference,
but the change in the text and the Committee Note hopefully will encourage judges to engage in
direct exchanges with the parties when warranted.
Second, the time for holding the scheduling conference is set at the earlier of 90 days
after any defendant has been served (reduced from 120 days in the present rule) or 60 days after
any defendant has appeared (reduced from 90 days in the present rule). The intent is to
encourage early management of cases by judges. Recognizing that these time limits may not be
appropriate in some cases, the proposal also allows the judge to set a later time on finding good
cause. In response to concerns expressed by the Department of Justice, the Committee Note
states that “[l]itigation involving complex issues, multiple parties, and large organizations, public
or private, may be more likely to need extra time to establish meaningful collaboration between
counsel and the people who can supply the information needed to participate in a useful way.”
Third, the proposed amendments add two subjects to the list of issues that may be
addressed in a case management order: the preservation of ESI and agreements reached under
Federal Rule of Evidence 502. ESI is a growing issue in civil litigation, and the Committee
believes that parties and courts should be encouraged to address it early. Similarly, Rule 502 was
designed in part to reduce the expense of producing ESI or other voluminous documents, and the
parties and judges should consider its potential application early in the litigation. Parallel
provisions are added to the subjects for the parties’ Rule 26(f) meeting.
Fourth, the proposed amendments identify another topic for discussion at the initial case
management conference – whether the parties should be required to request a conference with the
court before filing discovery motions. Many federal judges require such pre-motion conferences,
and experience has shown them to be very effective in resolving discovery disputes quickly and
inexpensively. The amendment seeks to encourage this practice by including it in the Rule 16
topics.
2. Rule 4(m): Time to Serve.
Rule 4(m) now sets 120 days as the time limit for serving the summons and complaint.
The Committee initially sought to reduce this period to 60 days, but the public comments
persuaded the Committee to recommend a limit of 90 days. The intent, as with the similar Rule
16 change, is to get cases moving more quickly and shorten the overall length of litigation. The
experience of the Committee is that most cases require far less than 120 days for service, and that
some lawyers take more time than necessary simply because it is permitted under the rules.
Public comments noted that a 60-day service period could be problematic in cases with
many defendants, defendants who are difficult to locate or serve, or defendants who must be
served by the Marshals Service. Others suggested that a 60-day period would undercut the
opportunity to request a waiver of service because little time would be left to effect service after
a defendant refuses to waive service. After considering these and other comments, the
Committee concluded that the time should be set at 90 days. Language has been added to the
Committee Note recognizing that additional time will be needed in some cases.
C. Cooperation.
Rule 1 now provides that the civil rules “should be construed and administered to secure
the just, speedy, and inexpensive determination of every action and proceeding.” The proposed
amendment would provide that the rules “be construed, administered, and employed by the court
and the parties to secure the just, speedy, and inexpensive determination of every action and
proceeding.”
As already noted, cooperation among parties was a theme heavily emphasized at the Duke
Conference. Cooperation has been vigorously urged by many other voices, and principles of
cooperation have been embraced by concerned organizations and adopted by courts and bar
associations. The Committee proposes that Rule 1 be amended to make clear that parties as well
as courts have a responsibility to achieve the just, speedy, and inexpensive resolution of every
action. The proposed Committee Note explains that “discussions of ways to improve the
administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse
of procedural tools that increase cost and result in delay. Effective advocacy is consistent with –
and indeed depends upon – cooperative and proportional use of procedure.”
The public comments expressed little opposition to the concept of cooperation, but some
expressed concerns about the proposed amendment. One concern was that Rule 1 is iconic and
should not be altered. Another was that this change may invite ill-founded attempts to seek
sanctions for violating a duty to cooperate. To avoid any suggestion that the amendment
authorizes such sanctions or somehow diminishes procedural rights provided elsewhere in the
rules, the Committee Note provides: “This amendment does not create a new or independent
source of sanctions. Neither does it abridge the scope of any other of these rules.”
The Committee recognizes that a rule amendment alone will not produce reasonable and
cooperative behavior among litigants, but believes that the proposed amendment will provide a
meaningful step in that direction. This change should be combined with continuing efforts to
educate litigants and courts on the importance of cooperation in reducing unnecessary costs in
civil litigation.
D. Summary: The Duke Proposals as a Whole.
The Committee views the Duke proposals as a package. While each proposed
amendment must be judged on its own merits, the proposals are designed to work together. Case
management will begin earlier, judges will be encouraged to communicate directly with the
parties, relevant topics are emphasized for the initial case management conference, early Rule 34
requests will facilitate a more informed discussion of necessary discovery, proportionality will be
considered by all participants, unnecessary discovery motions will be discouraged, and
obstructive Rule 34 responses will be eliminated. At the same time, the change to Rule 1 will
encourage parties to cooperate in achieving the just, speedy, and inexpensive resolution of every
action. Combined with the continuing work of the FJC on judicial education and the continuing
exploration of discovery protocols and other pilot projects, the Committee believes that these
changes will promote worthwhile objectives identified at the Duke Conference and improve the
federal civil litigation process.
III. RULE 37(e): FAILURE TO PRESERVE ESI.
Present Rule 37(e) was adopted in 2006 and provides: “Absent exceptional
circumstances, a court may not impose sanctions under these rules on a party for failing to
provide electronically stored information lost as a result of the routine, good-faith operation of an
electronic information system.” The Committee recognized in 2006 that the continuing
expansion of ESI might provide reasons to adopt a more detailed rule. A panel at the Duke
Conference unanimously recommended that the time has come for such a rule.
The Committee agrees. The explosion of ESI in recent years has affected all aspects of
civil litigation. Preservation of ESI is a major issue confronting parties and courts, and loss of
ESI has produced a significant split in the circuits. Some circuits hold that adverse inference jury
instructions (viewed by most as a serious sanction) can be imposed for the negligent loss of ESI.
Others require a showing of bad faith.
The Committee has been credibly informed that persons and entities over-preserve ESI
out of fear that some ESI might be lost, their actions might with hindsight be viewed as
negligent, and they might be sued in a circuit that permits adverse inference instructions or other
serious sanctions on the basis of negligence. Many entities described spending millions of
dollars preserving ESI for litigation that may never be filed. Resolving the circuit split with a
more uniform approach to lost ESI, and thereby reducing a primary incentive for over-
preservation, has been recognized by the Committee as a worthwhile goal.
During the two years following the Duke Conference, the Discovery Subcommittee, now
chaired by Judge Paul Grimm of the District of Maryland, considered several different
approaches to drafting a new rule, including drafts that undertook to establish detailed
preservation guidelines. These drafts started with an outline proposed by the Duke Conference
panel which called for specific provisions on when the duty to preserve arises, its scope and
duration in advance of litigation, and the sanctions or other measures a court can take when
information is lost. The Subcommittee conducted research into existing spoliation law,
canvassed statutes and regulations that impose preservation obligations, received comments and
suggestions from numerous sources (including proposed draft rules from some sources), and held
a mini-conference in Dallas with 25 invited judges, lawyers, and academics to discuss possible
approaches to an ESI-preservation rule.
The Subcommittee ultimately concluded that a detailed rule specifying the trigger, scope,
and duration of a preservation obligation is not feasible. A rule that attempts to address these
issues in detail simply cannot be applied to the wide variety of cases in federal court, and a rule
that provides only general guidance on these issues would be of little value to anyone. The
Subcommittee chose instead to craft a rule that addresses actions courts may take when ESI that
should have been preserved is lost.
Thus, the proposed Rule 37(e) does not purport to create a duty to preserve. The new rule
takes the duty as it is established by case law, which uniformly holds that a duty to preserve
information arises when litigation is reasonably anticipated. Although some urged the
Committee to eliminate any duty to preserve information before an action is actually filed in
court, the Committee believes such a rule would result in the loss or destruction of much
information needed for litigation. The Committee Note, responding to concerns expressed in
public comments, also makes clear that this rule does not affect any common-law tort remedy for
spoliation that may be established by state law.
Proposed Rule 37(e) applies when “electronically stored information that should have
been preserved in the anticipation or conduct of litigation is lost because a party failed to take
reasonable steps to preserve it, and it cannot be restored or replaced through additional
discovery.” Subdivisions (e)(1) and (e)(2) then address actions a court may take when this
situation arises.
A. Limiting the Rule to ESI.
Like current Rule 37(e), the proposed rule is limited to ESI. Although the Committee
considered proposing a rule that would apply to all forms of information, it ultimately concluded
that an ESI-only rule was appropriate for several reasons.
First, as already noted, the explosion of ESI in recent years has presented new and
unprecedented challenges in civil litigation. This is the primary fact motivating an amendment of
Rule 37(e).
Second, the remarkable growth of ESI will continue and even accelerate. One industry
expert reported to the Committee that there will be some 26 billion devices on the Internet in six
years – more than three for every person on earth. Significant amounts of ESI will be created and
stored not only by sophisticated entities with large IT departments, but also by unsophisticated
persons whose lives are recorded on their phones, tablets, cars, social media pages, and tools not
even presently foreseen. Most of this information will be stored somewhere on remote servers,
often referred to as the “cloud,” complicating the preservation task. Thus, the litigation
challenges created by ESI and its loss will increase, not decrease, and will affect unsophisticated
as well as sophisticated litigants.
Third, the law of spoliation for evidence other than ESI is well developed and
longstanding, and should not be supplanted without good reason. There has been little complaint
to the Committee about this body of law as applied to information other than ESI, and the
Committee concludes that this law should be left undisturbed by a new rule designed to address
the unprecedented challenges presented by ESI.
The Advisory Committee recognizes that its decision to confine Rule 37(e) to ESI could
be debated. Some contend that there is no principled basis for distinguishing ESI from other
forms of evidence, but repeated efforts made clear that it is very difficult to craft a rule that deals
with failure to preserve tangible things. In addition, there are some clear practical distinctions
between ESI and other kinds of evidence. ESI is created in volumes previously unheard of and
often is duplicated in many places. The potential consequences of its loss in one location often
will be less severe than the consequences of the loss of tangible evidence. ESI also is deleted or
modified on a regular basis, frequently with no conscious action on the part of the person or
entity that created it. These practical distinctions, the difficulty of writing a rule that covers all
forms of evidence, as well as an appropriate respect for the spoliation law that has developed
over centuries to deal with the loss of tangible evidence, all persuaded the Advisory Committee
that the new Rule 37(e) should be limited to ESI.
B. Reasonable Steps to Preserve.
The proposed rule applies if ESI “that should have been preserved in the anticipation or
conduct of litigation of litigation is lost because a party failed to take reasonable steps to preserve
it.” The rule calls for reasonable steps, not perfection. As explained in the Committee Note,
determining the reasonableness of the steps taken includes consideration of party resources and
the proportionality of the efforts to preserve. The Note also recognizes that a party’s level of
sophistication may bear on whether it should have realized that information should have been
preserved.
C. Restoration or Replacement of Lost ESI.
If reasonable steps were not taken and information was lost as a result, the rule directs
that the next focus should be on whether the lost information can be restored or replaced through
additional discovery. As the Committee Note explains, nothing in this rule limits a court’s
powers under Rules 16 and 26 to order discovery to achieve this purpose. At the same time,
however, the quest for lost information should take account of whether the information likely
was only marginally relevant or duplicative of other information that remains available.
D. Subdivision (e)(1).
Proposed Rule 37(e)(1) provides that the court, “upon finding prejudice to another party
from loss of the information, may order measures no greater than necessary to cure the
prejudice.” This proposal preserves broad trial court discretion to cure prejudice caused by the
loss of ESI that cannot be remedied by restoration or replacement of the lost information. It
further provides that the measures be no greater than necessary to cure the prejudice.
Proposed subdivision (e)(1) does not say which party bears the burden of proving
prejudice. Many public comments raised concerns about assigning such burdens, noting that it
often is difficult for an opposing party to prove it was prejudiced by the loss of information it
never has seen. Under the proposed rule, each party is responsible for providing such
information and argument as it can; the court may draw on its experience in addressing this or
similar issues, and may ask one or another party, or all parties, for further information.
The proposed rule does not attempt to draw fine distinctions as to the measures a trial
court may use to cure prejudice under (e)(1), but instead limits those measures in three general
ways: there must be a finding of prejudice, the measures must be no greater than necessary to
cure the prejudice, and the court may not impose the severe measures listed in subdivision (e)(2).
E. Subdivision (e)(2).
Proposed (e)(2) provides that the court:
only upon finding that the party acted with the intent to deprive another party of
the information’s use in the litigation, may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was
unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
A primary purpose of this provision is to eliminate the circuit split on when a court may
give an adverse inference jury instruction for the loss of ESI. As already noted, some circuits
permit such instructions upon a showing of negligence, while others require bad faith.
Subdivision (e)(2) permits adverse inference instructions only on a finding that the party “acted
with the intent to deprive another party of the information’s use in the litigation.” This intent
requirement is akin to bad faith, but is defined even more precisely. The Committee views this
definition as consistent with the historical rationale for adverse inference instructions.
The Discovery Subcommittee analyzed the existing cases on the use of adverse inference
instructions. Such instructions historically have been based on a logical conclusion: when a party
destroys evidence for the purpose of preventing another party from using it in litigation, one
reasonably can infer that the evidence was unfavorable to the destroying party. Some courts hold
to this traditional rationale and limit adverse inference instructions to instances of bad faith loss
of the information. See, e.g., Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997)
(“The adverse inference must be predicated on the bad faith of the party destroying the records.
Mere negligence in losing or destroying records is not enough because it does not support an
inference of consciousness of a weak case.”) (citations omitted).
Circuits that permit adverse inference instructions on a showing of negligence adopt a
different rationale: the adverse inference restores the evidentiary balance, and the party that lost
the information should bear the risk that it was unfavorable. See, e.g., Residential Funding Corp.
v. DeGeorge Finan. Corp., 306 F.3d 99 (2d Cir. 2002). Although this approach has some
equitable appeal, the Committee has several concerns when it is applied to ESI. First, negligently
lost information may have been favorable or unfavorable to the party that lost it – negligence
does not necessarily reveal the nature of the lost information. Consequently, an adverse
inference may do far more than restore the evidentiary balance; it may tip the balance in ways the
lost evidence never would have. Second, in a world where ESI is more easily lost than tangible
evidence, particularly by unsophisticated parties, the sanction of an adverse inference instruction
imposes a heavy penalty for losses that are likely to become increasingly frequent as ESI
multiplies. Third, permitting an adverse inference for negligence creates powerful incentives to
over-preserve, often at great cost. Fourth, the ubiquitous nature of ESI and the fact that it often
may be found in many locations presents less risk of severe prejudice from negligent loss than
may be present due to the loss of tangible things or hard-copy documents.
These reasons have caused the Committee to conclude that the circuit split should be
resolved in favor of the traditional reasons for an adverse inference. ESI-related adverse
inferences drawn by courts when ruling on pretrial motions or ruling in bench trials, and adverse
inference jury instructions, should be limited to cases where the party who lost the ESI did so
with an intent to deprive the opposing party of its use in the litigation. Subdivision (e)(2) extends
the logic of the mandatory adverse-inference instruction to the even more severe measures of
dismissal or default. The Committee thought it incongruous to allow dismissal or default in
circumstances that do not justify the instruction.
Subdivision (e)(2) covers any instruction that directs or permits the jury to infer from the
loss of information that the information was in fact unfavorable to the party that lost it. The
subdivision does not apply to jury instructions that do not involve such an inference. For
example, subdivision (e)(2) would not prohibit a court from allowing the parties to present
evidence to the jury concerning the loss and likely relevance of information and instructing the
jury that it may consider that evidence, along with all the other evidence in the case, in making its
decision. These measures, which would not involve instructing a jury that it may draw an
adverse inference from loss of information, would be available under subdivision (e)(1) if no
greater than necessary to cure prejudice. In addition, subdivision (e)(2) does not limit the
discretion of courts to give traditional missing evidence instructions based on a party’s failure to
present evidence it has in its possession at the time of trial.
Subdivision (e)(2) does not include a requirement that the court find prejudice to the party
deprived of the information. This is because the finding of intent required by the subdivision can
support not only an inference that the lost information was unfavorable to the party that
intentionally destroyed it, but also an inference that the opposing party was prejudiced by the loss
of that favorable information.
The Committee Note states that courts should exercise caution in using the measures
specified in (e)(2). Finding an intent to deprive another party of the lost information’s use in the
litigation does not require a court to adopt the measures listed in subdivision (e)(2). The remedy
should fit the wrong, and the severe measures authorized by this subdivision should not be used
when the information lost was relatively unimportant or lesser measures such as those specified
in subdivision (e)(1) would be sufficient to redress the loss.
IV. ABROGATION OF RULE 84.
The Federal Rules of Civil Procedure are followed by an Appendix of Forms. The
Appendix includes 36 separate forms illustrating things such as the proper captions for pleadings,
proper signature blocks, and forms for summonses, requests for waivers of service, complaints,
answers, judgments, and other litigation documents. Rule 84 provides that the forms “suffice
under these rules and illustrate the simplicity and brevity that these rules contemplate.”
Many of the forms are out of date. The sample complaints, for example, embrace far
fewer causes of action than now exist in federal court and illustrate a simplicity of pleading that
has not been used in many years. The increased use of Rule 12(b)(6) motions to dismiss, the
enhanced pleading requirements of Rule 9 and some federal statutes, the proliferation of statutory
and other causes of action, and the increased complexity of most modern cases have resulted in a
detailed level of pleading that is far beyond that illustrated in the forms.
Amendment of the civil forms is cumbersome. It requires the same process as
amendment of the civil rules themselves – amendments proposed by the Committee must be
approved by the Standing Committee, the Judicial Conference, the Supreme Court, and
Congress. Public notice and comment are also required. The process ordinarily takes at least
three years.
In addition to being out of date and difficult to amend, the Committee’s perception was
that the forms are rarely used. The Committee established a Rule 84 Subcommittee, chaired by
Judge Gene Pratter of the Eastern District of Pennsylvania, to consider the current forms and the
process of their revision, and to recommend possible changes. Members of the Subcommittee
canvassed judges, law firms, public interest law offices, and individual lawyers, and found that
virtually none of them use the forms.
Many alternative sources of civil forms are available. These include forms created by
private publishing companies and a set of non-pleading forms created and maintained by a Forms
Working Group at the Administrative Office of the United States Courts (“AO”). The Working
Group consists of six federal judges and six clerks of court, and the forms they create in
consultation with the various rules committees can be downloaded from the AO website at
http://www.uscourts.gov/FormsAndFees/Forms/CourtFormsByCategory.aspx. A May 2012
survey of the websites maintained by the 94 federal district courts around the country found that
88 of the 94 either link electronically to the AO forms or post some of the AO forms on their
websites. Only six of the 94 mention the Rule 84 forms on their websites or in their local rules,
confirming that the rules forms are rarely used.
The Subcommittee ultimately recommended that the Committee get out of the forms
business. The Committee agreed, and published a proposal in August 2013 to abrogate Rule 84
and eliminate the forms appended to the rules. The two exceptions to this recommendation are
forms 5 and 6, which are referenced in Rule 4 and would, under the proposal, be appended to that
specific rule.
Very few of the public comments addressed the abrogation of Rule 84. Among the
objections, most asserted that the elimination of the forms would be viewed as an indirect
endorsement of the Twombly and Iqbal pleading standards. A few argued that the forms assist
pro se litigants and new lawyers, but of these, only one stated that the writer had ever actually
used the forms. The general lack of response to the Rule 84 proposal reinforced the Committee’s
view that the forms are seldom used.
After considering the public comments, the Committee continues to believe that the
forms and Rule 84 should be eliminated. The forms are not used; revising them is a difficult and
time-consuming process; other forms are readily available; and the Committee can better use its
time addressing more relevant issues in the rules. The Committee continues to review the effects
of Twombly and Iqbal. If it decides action is needed in this area, the more direct approach will be
to amend the rules, not the forms.
V. RULE 55.
The Committee proposes that Rule 55(c) be amended to clarify that a court must apply
Rule 60(b) only when asked to set aside a final judgment. The reason for the change is explained
in the proposed Committee Note.
