Proposed Federal Rules Amendments

One year ago today, the long awaited amendments to the Federal Rules of Civil Procedure went into effect. The “package” of amendments included changes across a number of rules and focused on increasing cooperation, achieving proportionality in discovery, and encouraging early case management by judges. A new Rule 37(e) was added addressing sanctions for the failure to preserve electronically stored information.

Updates to the Federal Rules of Civil Procedure and a rising crop of tech savvy attorneys have Magistrate Judge John M. Facciola (Ret.) of the U.S. District Court for the District of Columbia optimistic about the future of e-discovery.

On April 29, 2015, the United States Supreme Court adopted amendments to the Federal Rules of Civil Procedure and submitted them to Congress. The long-awaited amendments, often described as a “package” of complementary amendments, focus on increasing cooperation, achieving proportionality in discovery, and encouraging early case management by judges.

The call for cooperation in legal disputes is on its way to being enshrined within the Federal Rules of Civil Procedure in a more meaningful way. Several years ago, the Sedona Conference®’s Cooperation Proclamation called for greater cooperation between litigants in dealing with discovery matters. The idea calls for attorneys not to compromise their duty to be zealous advocates, but to strive for balance with their other duty as an officer of the court.

On Tuesday, September 16, the Judicial Conference of the United States forwarded the proposed rule amendments to the Supreme Court with the recommendation that they be adopted. The announcement recognized that these amendments represent “significant” proposals designed to promote the just, speedy, and inexpensive resolution of civil cases. The Supreme Court has until May 1, 2015 to consider the amendments.

The latest round of proposed amendments published for comment appear to be just housekeeping measures, and therefore are not nearly as significant as the proposed amendments that were published for comment last August. These newest proposals include a clarifying amendment to Rule 4, removal of service by electronic means from the types of service for which three additional days are added to the time period under Rule 6, and a housekeeping amendment to Rule 82.

At its meeting last week, the Judicial Conference’s Committee on Rules of Practice and Procedure approved the proposed amendments to the Federal Rules of Civil Procedure, as recommended by the Advisory Committee on Rules of Civil Procedure. The approved amendments will be reviewed by the Judicial Conference of the United States and, if approved, will move to the U.S. Supreme Court for a review and vote before May 1, 2015.

In advance of this week's Standing Committee meeting on May 29 and 30, the Advisory Committee on Civil Rules has drafted a new Committee Note to accompany its newly revised proposed Rule 37(e). This is another step forward in the long process of adopting revisions to the Federal Rules of Civil Procedure. The Note provides additional insight into the new rule's "reasonable steps to preserve" language.

At the Advisory Committee on Civil Rules’ meeting last week in Portland, Oregon, the Committee voted to adopt the Duke Conference “package” of amendments, as well as a last minute revised and streamlined Rule 37(e). The Committee considered and approved for adoption the package of amendments as laid out in the Agenda Book for the meeting.