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Litigators should be aware of several proposed amendments to the Federal Rules of Civil Procedure that will likely take effect on Dec. 1 of this year. If approved, the 2000 amendments will have a noticeable effect on daily practice. As explained below, these amendments will forbid the filing of discovery materials, narrow the scope of initial disclosures and discovery in general, impose a presumptive limitation on the duration of depositions and enhance the courts’ ability to sanction discovery abuses. The amendments will also prohibit the district courts from deviating from several significant discovery rules. AMENDMENT PROCESS The Supreme Court approved the amendments on April 14, 2000, and they are now before Congress for review. In terms of the rulemaking process, these amendments have cleared six of seven hurdles and, absent affirmative legislation to the contrary, they will take effect on Dec. 1. The amendment process itself, which is coordinated by the Administrative Office of the United States Courts, is intriguing. Initially, suggested amendments are considered by the Civil Rules Advisory Committee, which receives recommendations from various sources, including judges, clerks of court, lawyers and professors. If the advisory committee decides that a proposal is appropriate, it prepares a draft amendment and explanatory committee note, which it forwards to the Judicial Conference’s Committee on Rules of Practice and Procedure (also known as the standing committee) to obtain approval to publish the amendment for public comment. Once the standing committee approves publication, the proposed amendment is circulated during a six-month public comment period to more than 10,000 individuals and organizations. After the public comment period, the advisory committee considers the comments and revises the amendment, if appropriate. It then submits the amendment in final form to the standing committee for approval, with a summary of the comments received from the public. The standing committee may accept, reject or modify the advisory committee’s final recommendation. If it approves the proposal, the standing committee forwards the amendment to the Judicial Conference, with the Advisory Committee’s reports and the Standing Committee’s own report, explaining any modifications it made. At the fifth step, in September, the Judicial Conference considers the proposed amendments. If it approves the amendments, the conference forwards the proposals to the Supreme Court. The Supreme Court has the authority to prescribe the federal rules, subject to a statutory waiting period. The court must transmit proposed amendments to Congress by May 1 of the year in which the amendments are to take effect. Finally, Congress has a statutory period of at least seven months to act on any rules prescribed by the Supreme Court. If Congress does not enact legislation to reject, modify or defer the rules, the rules take effect as a matter of law on December 1. The Supreme Court approved the following amendments on April 17, 2000, and they are now before Congress for approval. Accordingly, if Congress does not act, these proposed amendments will take effect on December 1, 2000. SERVICE AND FILING OF PAPERS The proposed amendment to Rule 5(d) forbids the filing of discovery materials with the court until they are used in a proceeding. This rule will supercede all local rules, such as Eastern District of Pennsylvania Local Rule 26. 1(a), which already proscribe the filing of discovery. The purpose of this amendment is to promote consistency among the districts. DISCOVERY AND DUTY OF DISCLOSURE The proposed amendments to the discovery rules are significant and are based on four primary goals: to reduce the costs of discovery, to increase efficiency of discovery, to restore national uniformity to the rules and to encourage the courts to participate more actively in discovery. Of particular interest in the Eastern District of Pennsylvania, the amendments remove the district courts’ authority to deviate, by local rule or standing order, from several significant discovery rules, including those rules concerning initial disclosures, limitations on the number of depositions and interrogatories, the timing of discovery, the Rule 26(f) conference and limitations on the length of depositions. Required Disclosures The proposed amendments narrow the initial disclosure obligations of Rule 26, and require a party to disclose only information that the party “may use to support its claims or defenses.” In contrast, under the current language, a party must disclose information “relevant to disputed facts alleged with particularity in the pleadings.” Thus, a party is no longer required to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to “use.” Additionally, the broad category of “relevance” is replaced by “claims or defenses.” The amendment also excludes impeachment information from disclosure, and parties do not have to disclose unfavorable information. Under amended Rule 26(a), districts may not “opt out” of initial disclosure obligations by local rule or, according to the comments to the amendment, by standing order (embracing national uniformity for disclosure practice). Accordingly, this amendment will affect standing orders, such as that in effect in the Eastern District of Pennsylvania, that opt out of the Rule 26 initial disclosure requirement. The proposed amendment to Rule 26(a) also excludes eight categories of cases primarily administrative, prisoner and government actions from the initial disclosure obligation. Finally, the amendment provides that a party may object to initial disclosures, claiming that they are not appropriate for the case, and joined parties must make initial disclosures within thirty days of joinder. Discovery Scope and Limits The amendments to the scope of discovery in Rule 26(b) parallel the amendments to Rule 26(a) that narrow the scope of initial disclosures. Accordingly, the proposed amendments limit the scope of discovery to information relevant to “the claim or defense” of any party (as opposed to “the subject matter involved” in the action). However, for good cause, the court may order discovery “relevant to the subject matter involved in the action.” The amendment also clarifies that, although information sought need not be admissible, it must be “relevant” to be discoverable. Finally, the proposed amendments to Rule 26(b) remove the prior authority to deviate from the national limitation on the number of depositions or interrogatories by local rule or standing order. (District courts may, however, still limit the number of Requests for Admission by local rule.) The purpose of these amendments is to alter the balance between attorney-controlled discovery and court-controlled discovery and to involve the courts more actively in regulating the breadth of sweeping or contentious discovery. Timing and Sequence; Conference of Parties Under current Rule 26(d), a party may not seek discovery from any source until the parties have met and conferred pursuant to Rule 26(f) (unless otherwise authorized by the rules or by agreement). However, Rules 26(d) and (f) also provide that a district court may, by local rule, exempt a case from the moratorium on discovery before the Rule 26(f) conference and the discovery conference requirement under Rule 26(f). The proposed amendments to Rules 26(d) and (f) remove the district courts’ authority to make such exemptions by local rule or standing order. Thus, the moratorium on discovery and the Rule 26(f) conference will become the national norm. The amendment to Rule 26(f) also removes the previous requirement of a face-to-face meeting between counsel. Counsel will be able to conduct the Rule 26(f) conference over the telephone. The proposed 2000 discovery amendments leave the application of the Eastern District of Pennsylvania’s Standing Order concerning the 1993 amendments to the federal rules and some aspects of the Civil Justice Expense and Delay Reduction Plan, currently in effect in the Eastern District, in doubt. Pursuant to the standing order, as amended in 1997, the Eastern District has opted out of Rule 26(a)(1)’s initial disclosure requirement. However, as noted above, according to the comments to the proposed amendments to Rule 26, after December, district courts may not opt out of the federal rules’ initial disclosure requirement by local rule or by standing order. Similarly, the amendments also conflict with that part of the standing order that opts out of Rule 26(f)’s requirement for a conference. Under the amendment to Rule 26(f), discussed above, district courts may not opt out of the Rule 26(f) conference requirement. Additionally, self-executing disclosures under Section 4:01 of the Eastern District’s Delay Reduction Plan are governed by a slightly different standard than disclosures under the proposed amended federal rules. Currently, the required disclosures under Section 4:01 are more narrow than those mandated by the federal rules, in that they are limited to “claims and defenses.” However, after the December amendments, the Delay Reduction Plan’s disclosure requirements will be broader, because they are not limited to the claims and defenses of “the disclosing party” as the future federal rules will instruct. Section 4:01 of the Delay Reduction Plan does not call for disclosure of damages information, unlike Rule 26 of the federal rules. The district court’s most recent order extends the Delay Reduction Plan’s operation until Dec. 31, 2000. Possibly, the district court simply will not extend the plan’s operation and permit the plan to sunset. The timing would coincide with the December amendments, which, as noted above, conflict with several of the plan’s terms. Accordingly, if the plan expired, the district court’s standing order concerning the 1993 amendments, which also conflicts with the proposed amendments, would become moot, since the order, by its terms, addresses the Delay Reduction Plan. At a minimum, the prospective conflicts require the district court to consider not extending the operation of the Plan (or at least Section 4:01), and amending or vacating its standing order concerning the 1993 amendments. DEPOSITIONS Rule 30 is another example of how the 2000 amendments will affect a litigator’s daily practice. The proposed amendment to Rule 30(d) will impose a presumptive limitation on depositions of “one day of seven hours,” defined as seven hours of testimony, not including breaks. However, a district court may order – or the parties may stipulate – otherwise. Absent an agreement, a party must show good cause for an extension. Numerous factors may warrant an extension, including the necessity of a translator, a large volume of documents to review or simply an examination that will cover events over a long period of time and that cannot be discussed in seven hours. Again, the intention of this amendment is to reduce discovery and litigation costs. FAILURE TO DISCLOSE; SANCTIONS Rule 26(e)(2) requires a party to amend prior discovery responses. However, currently, there is no specific sanction for failing to abide by this rule. The amendment to Rule 37 explicitly adds the failure to comply with Rule 26(e)(2) to the circumstances warranting sanctions under Rule 37(c)(1). Thus, this amendment adds teeth to Rule 26(e)(2)’s requirement. For more information on the rulemaking process or the anticipated Dec. 1, 2000, amendments, visit The Federal Judiciary Homepage at www.uscourts.gov. Michael J. Tierney is an associate in the Philadelphia office of Pepper Hamiltonand a member of the firm’s commercial litigation group. He concentrates his practice on general corporate, employee benefits and ERISA litigation. He can be reached at 215-981-4028 or [email protected]

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