Page 6 - E-Discovery

S6 | MONDAY, OCTOBER 6, 2014 | E-Discovery
| NYLJ.COM

Proposed Rule Changes Shorten
with direct interaction between the court
and counsel for the parties. The proposed
amendments also allow courts to alter or
Streamline enhance the contents of the scheduling order.
And Pretrial Discovery
Under the proposed amendments the court
may require a discovery conference prior to
moving for a discovery order.5 The proposed
amendments also permit the scheduling order

to include agreements reached under Federal
Rule of Evidence 502.6

Discovery

The proposed rules amendments offered
by the Advisory Committee withdrew certain
proposed changes to limit the discovery tools
parties may use in litigation while keeping oth-
ers designed to make discovery more focused
and eficient. Parties are now permitted to
serve Rule 34 document requests prior to the
Rule 26(f) conference, however the requests
will be deemed to have been served as of the

date of the Rule 26(f) conference.7 Responses
and objections to the requests for produc-
tion must state with speciicity the grounds
for objection, indicate if documents will be
withheld on the basis of the stated objec-
tions and must include a date or time line for
production.8 The Advisory Committee chose
to withdraw proposed amendments that set
limits on the discovery tools that may be used
by a party in litigation. Initially, the proposed
amendments reduced the number of deposi-
tions a party may take to ive and limited the
length of the deposition to six hours. Similarly,
the proposed amendment submitted for pub-

lic comment limited number of interrogatories
a party may issue to 15 and set a limit of 25
for requests for admission excluding requests
for admission as to the authenticity of docu-
ments. Instead, the Advisory Committee felt
that concept of proportionality would allow
courts to address the number and scope of K
discovery tools, particularly with the short- TOC
ening of the pretrial period and the ability IGS
to gain an understanding of an adversary’s B
case through the 26(f) conference and the
ability to serve interrogatories prior to the
conference.
to complete the early stages of a lawsuit, to pretrial case management that were held
reduce the cost and burden of discovery over from the version sent out for public
BY EDWIN M. LARKIN
Proportionality
Iand to settle disputing views among courts comment, particularly regarding the Rule
n May, the Civil Rules Advisory Committee regarding the scope of discovery and the 16 scheduling conference and order. The
The Advisory Committee’s proposed issued its report to the Standing Committee appropriate sanctions for spoliation. From proposed changes would reduce the time to
amendments retained changes that seek to of the Judicial Conference addressing the a day-to-day standpoint, litigants will feel the serve the summons and complaint on the
incorporate the concept of proportional- proposed amendments to Federal Rules of impact of these rules changes immediately defendant from 120 days to 90 days.2 If the
ity into the discovery scheme set forth in Civil Procedure 1, 4, 16, 26, 30, 31, 33, 34 and in subtle and not so subtle ways. Most sig- defendant has not been served within that
the federal rules. Under the current rules, 37.1 The proposed amendments contained niicantly, parties should have more comfort time the court has the option to extend the
discovery may be obtained “regarding any in the Advisory Committee Report adopted that the inadvertent loss of electronically time for service upon a showing of good cause
non-privileged matter that is relevant to any many, but not all, of the original proposed stored data will not result in the signiicant for the failure to serve or dismiss the case.
party’s claim or defense—including the exis- amendments sent out for public comment sanctions that have been imposed on some The proposed amendments also shorten the
tence, description, nature, custody, condition and changes one of the more controversial parties for the negligent loss of data. Further time the district judge has to issue the Rule
and location of any documents or other tan- proposed amendments, the modiication of the pretrial process has been shortened 16 scheduling order from 120 days after a
gible things and the identity and location of Rule 37(e). In September, the Judicial Confer- and streamlined, allowing the judge to take defendant has been served or 90 days after
persons who know any discoverable matter.”ence will meet to consider proposed changes control of the case sooner. These changes a defendant has appeared to 90 days after a
9
Discovery is available under this standard to the rules and may propose further changes mean that parties will need to consider their defendant has been served or 60 days after
without regard to whether the discovery of its own, but if adopted by the U.S. Supreme litigation strategy sooner and the type and a defendant has appeared.3 The original pro-
sought is admissible if it is likely to lead to Court, the current changes to the rules will scope of discovery they need earlier in the posal to reduce this time period to 60 days
the discovery of admissible evidence. The have an impact on the way cases are litigated case. By reducing the time it takes to get to was changed after strong opposition during
proposed amendments seek to reduce the in the federal courts. The amendments are the merits stage of a lawsuit, the drafters of the the public comment period. The proposed
scope of available discovery by introducing intended to reduce the time it takes parties
rules amendments hope to reduce the costs amendments would allow the court to issue
the notion of proportionality. The proposed associated with litigation in the federal courts.
the scheduling order after receipt of the par-
amendments provide that discovery may ties’ Rule 26(f) report or after “direct simulta-
be had “regarding any non-privileged mat- EDWIN M. LARKIN is a litigation partner at Edwards Case Management
neous communication” between the parties
ter that is relevant to any party’s claim or Wildman Palmer in New York. He has more than 15 and the court.4 The rationale for this change
defense and proportional to the needs of the years of experience in matters involving electronic There are several proposed changes to the is the view that if a scheduling conference
case, considering the amount in controversy,
discovery issues.
provisions of the federal rules that govern
is to be held, it is more eficient to hold it