The U.S. Judicial Conference’s Committee on Rules of Practice and Procedure has recently published for public comment proposed amendments to the Federal Rules of Civil Procedure. For several years now, courts and litigants have recognized the ever escalating cost of discovery in federal civil litigation. In May 2010, a conference was held at Duke Law School, referred to aptly as the Duke Conference, to discuss ideas and proposals to reduce the cost and delay in civil litigation. While the Duke Conference considered numerous ideas, the main themes to emerge were proportionality in discovery, cooperation among lawyers, and early and active judicial case management.
To advance these goals, the Rules Committee approved for publication, among other things, proposed changes to Fed. R. Civ. P. 1, 4, 16, 26, 30, 31, 33, 34, 36 and 37. The published proposals are accompanied by a memorandum from the Advisory Committee on Civil Rules, which explains the rationale for each change. Several of these amendments, if adopted, could have a meaningful impact on civil litigation. This article focuses on the proposed changes to Fed. R. Civ. P. 26(b)(1) and 37(e), which could have a significant impact on discovery, but also leave several unanswered issues that may keep their true impact from being felt until interpreted by the courts.
