Attorneys Author Article Discussing Reforms to Federal Rules of Civil Procedure

New York Law Journal | October.07.2013

Mass torts and product liability partner Siobhan Handley, eDiscovery counsel Wendy Butler Curtis and John Palmer, Assistant General Counsel – Litigation at Microsoft, recently co-authored an article in the New York Law Journal entitled “FRCP Reform: Prospects for Reducing Disputes and Gamesmanship.” The article discusses reforming the Federal Rules of Civil Procedure. An excerpt from the article is included below.

Just two years after the 2007 amendments to the Federal Rules of Civil Procedure (Rules), the American College of Trial Lawyers and the ABA both published reports that articulated concerns of both the plaintiff and defense bars regarding discovery practice in federal court. The Advisory Committee on the Federal Rules of Civil Procedure (or the Advisory Committee) held a series of meetings at the Duke Civil Litigation Conference in 2010 to facilitate greater discussion regarding thematic challenges, proposed solutions and in particular whether further amendments to the Rules were needed to reduce cost and delay in civil litigation. Through these efforts the Advisory Committee drafted, and now presents for comment, proposed amendments to the Rules. The discovery-related amendments, coined the "Duke Rules Package" by the Advisory Committee, are below.

Cooperation

  • Rule 1 now states expressly that the court and parties should use the Rules for the just, speedy and inexpensive resolution of actions. Previously, Rule 1 merely stated that the Rules should be interpreted and administered to effect the just, speedy and inexpensive resolution of actions.
  • Rules 16(b)(3) and 26(f) now state that scheduling orders and discovery plans may include FRE 502 "clawback" or "non-waiver" agreements. Previously, these rules did not expressly allow scheduling orders and discovery plans to provide for the preservation of electronically stored information or include agreements reached under FRE 502.
  • Rules 34 and 26(d)(1)(b) allow parties to serve requests for production prior to the Rule 26(f) conference but the requests are not considered served until the first Rule 26(f) conference. Previously, requests for production could generally not be served until after the Rule 26(f) conference.
  • Rule 34(b)(2)(C) provides that objections must include a statement regarding whether any material is being withheld based on the stated objection.