By this time next year, we may be on the cusp of another major set of amendments to the discovery provisions of the Federal Rules of Civil Procedure. The United States Courts’ Advisory Committee on Civil Rules voted last week to send a slate of proposed amendments up the rulemaking chain, to its Standing Committee on Rules of Practice and Procedure, with a recommendation that the proposals be approved for publication and public comment later this year.

The most significant — and controversial — of the proposals would narrow the scope of discovery under Rule 26; impose or reduce numerical limits on written discovery and depositions under Rules 30, 31, 33 and 36; and, in Rule 37, adopt a uniform set of guidelines concerning the imposition of sanctions when a party fails to preserve discoverable information. Proposed amendments to Rule 34 would tighten the rules governing responses to requests for production of documents.

The proposals recommended by the advisory committee include several amendments to Rule 26(b), which governs the scope of and limitations on discovery. First, the revised rule would restrict the defined scope of discovery to information that is "proportional to the needs of the case." The considerations that bear on proportionality are currently listed in Rule 26(b)(2)(c)(iii), which requires a court to limit discovery it determines to be disproportionate. By incorporating those factors into the definition of the scope of discovery, the new rule would mandate adherence by the parties without court intervention.

The scope of discovery would be further limited by deletion of the following two sentences currently in Rule 26(b)(1): "For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."

Under proposed Rules 30 and 31, the presumptive number of depositions (oral and written) a party may take in a case would be reduced from 10 to five. The limit of seven hours per oral deposition would be reduced to six. The presumptive number of written interrogatories permitted each party under Rule 33 would fall from 25 to 15. In addition, for the first time, a presumptive limit on the number of Requests for Admission a party may serve would be imposed under Rule 36. The proposed maximum is 25 requests, excluding requests relating to the genuineness of documents, which remain uncapped. Any of the numerical discovery limits may be increased by court order or by stipulation of the parties.

Proposed changes to Rule 34, governing the production of documents and electronically stored information, are aimed at reducing the unreasonable burden imposed by certain objections to requests to produce. First, the amendment clarifies that objections to document requests must be stated with specificity, a requirement already applied to interrogatory responses in Rule 33. Second, the proposed rule provides that where a responding party states that it will produce the requested documents instead of permitting inspection — the overwhelmingly common practice in the age of ESI — the production must be completed by the date for inspection stated in the request or by a later reasonable time stated in the response. Finally, under amended Rule 34, a party objecting to a document request would be required to state whether any responsive materials were being withheld on the basis of the objection.

The amendment to Rule 37(e), concerning sanctions for failure to preserve discoverable information, has drawn the greatest attention, as the advisory committee has been working on the proposal for nearly two years. The proposed amendment is intended to create a uniform national standard regarding the level of culpability required to justify severe sanctions for spoliation. The advisory committee has repeatedly heard that the inconsistency among federal courts on this issue, and the resulting fear of unpredictable sanctions, have driven corporations to incur enormous costs to preserve ESI far beyond any reasonable bounds. According to the draft committee’s note, "The amended rule is designed to ensure that potential litigants who make reasonable efforts to satisfy their preservation responsibilities may do so with confidence that they will not be subjected to serious sanctions should information be lost despite those efforts."

The proposed rule establishes two categories of measures a court may impose when it finds that a party failed to preserve information that should have been preserved for litigation. The first category includes remedies and curative measures that are not considered "sanctions," such as allowing additional discovery, requiring a party to recreate or obtain the information it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.

The second category of measures a court may impose to address preservation failures includes the sanctions currently listed in Rule 37(b)(2)(A) as appropriate measures when a party violates a court order to provide discovery — such as issue or evidence preclusion, the striking of pleadings and dismissal of the action in whole or in part — plus the additional option of adverse inference instructions. Perhaps the most hotly debated section in the proposed amendments is the one providing that the court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused "substantial prejudice" in the litigation and was "willful or in bad faith," or that the failure to preserve "irreparably deprived a party of any meaningful opportunity" to litigate the claims in the action.

The proposed rule lists factors the court should consider in determining whether a party’s failure to preserve discoverable information was willful or in bad faith and, thus, punishable by sanctions or an adverse inference instruction. The factors include the extent to which a party was on notice that litigation was likely, and the reasonableness of a party’s efforts to preserve the information that was lost.

If the standing committee approves the proposed amendments for publication at its meeting in early June, the amendments would be published for public comment soon thereafter. The public comment period for proposed rules normally lasts six months. The advisory committee, anticipating a high level of public interest in the proposals, plans to hold several days of public hearings in different cities around the U.S., with dates and locations yet to be announced. •