October 22, 2012, to discuss revisions of the proposed rules drafts that were discussed at the Dallas miniconference on October 8. The call was attended by Judge John G. Koeltl,
Subcommittee Chair; Judge David G. Campbell, Advisory Committee Chair; Judge Paul W. Grimm, Judge Gene E.K. Pratter, and Peter D. Keisler, Esq., Subcommittee members; Judge Jeffrey S. Sutton, Standing Committee Chair; Judge Diane P. Wood, liaison from the Standing Committee; Benjamin Robinson, Esq., Counsel to the Rules Committees; and Julie Wilson, Esq., Administrative Office.
Reporters Cooper and Marcus also participated.
Judge Koeltl stated the purpose of the call. The
Subcommittee should measure the degree of consensus emerging from the Dallas miniconference. Changes in the rules sketches
discussed at the miniconference will be considered in light of the lessons learned there. Substantial time should be devoted to the means of integrating the concept of proportionality and the strictures of present Rule 26(b)(2)(C)(iii) into the scope of discovery as defined in Rule 26(b)(1), as advanced in the draft prepared by Judge Campbell. If time permits, the prospect of incorporating the concept of cooperation into Rule 1 also may be reviewed. Deliberations can follow the order of the questions prepared to guide the miniconference discussion.
As a preliminary matter, it was agreed that the Subcommittee should continue to work with the Federal Judicial Center to
develop programs that encourage judges to implement the lessons learned from the Duke Conference and ongoing work to develop those lessons.
Timing: Service, Conferences: The first questions go to the shortened times proposed for serving process under Rule 4(m), holding the parties’ Rule 26(f) conference, and holding the
scheduling conference. Despite doubts expressed on behalf of the Department of Justice, these proposals seemed to enjoy consensus support. The present times for acting seem unnecessarily long. But concerns were expressed. A scheduling conference set too
early may not be of much value, as the lawyers — particularly the defendant’s lawyers — may not have had sufficient time to become familiar with the case. Perhaps the 16(b) period should be
compromised at 90 days after any defendant has been served or 60? 75? days after any defendant has appeared. "We want the parties to be prepared." But a judge responded that he sets the
scheduling conference at 60 days, but defers if a party suggests a need for more time. The early setting "encourages parties to come in early." The New York State Bar suggested the importance of an early conference. Another judge agreed that an early
follow-up conference. "It keeps ’em on a short leash." The rule sketch could be revised to recognize that "must issue" is subject to deferral on showing good cause. An exception also might be made by allowing local rules to make exceptions. Further
discussion noted that some judges may issue form orders without much thought, but that there is not much to be done about this practice in drafting rules.
There also was a consensus that the scheduling conference should be an actual, contemporaneous conference.
Uniform Exemptions: Rules 16(b), 26(a)(1)(B), 26(d), 26(f): The proposal to adopt the set of exemptions for initial disclosures under Rule 26(a)(1)(B) for Rules 16(b), 26(d), and 26(f) found support as well. But displacing local rule exemptions for Rule 16(b) may require further work. The Administrative Office will undertake a survey of local rules to see what categories of actions are exempted. If the survey suggests it would be
desirable to add new categories to Rule 26(a)(1)(B), an attempt will be made to determine what fraction of the federal docket would be affected. The exemptions in 26(a)(1)(B) were thought to account for approximately 30% of the federal docket when they were adopted. Incorporating them into other rules, and perhaps expanding the list, would take us well into a 2-track world for scheduling orders and discovery practice. Resolving these issues will mean that they are something of a "back-burner" question for immediate purposes.
Conference Before Discovery Motion: The proposal for an informal conference with the court before making a discovery motion was well received. But it was noted that many judges would resist imposing it as a required prerequisite. It seems better to lead with the more modest proposal to make this practice a "permitted content" for the scheduling order under Rule 16(b)(3)(B).
Discovery Moratorium: Requests Before Rule 26(f) Conference: Allowing discovery requests to be served before the Rule 26(f) conference, revising the present moratorium under Rule 26(d), provoked substantial discussion in Dallas. Several of the
participants — most of them lawyers who represent plaintiffs — said they would serve discovery requests before the Rule 26(f) conference if that were permitted. But it was pointed out that the sketches drafted to protect against imposing a requirement to respond before the Rule 26(f) conference actually slow the time to respond compared to what is possible under present rules. The 26(d) moratorium now expires with the Rule 26(f) conference, authorizing discovery requests immediately after the conference. Time to respond would begin to run. The sketches, however, set response time from entry of the scheduling order, a later time. If that seems a problem, it would be possible to fall back to a proposal that was rejected in early Subcommittee discussions. Rather than set an interval that delays discovery requests for
some time after the action is filed, all parties could be
authorized to serve requests at any time after filing. The time to respond would begin to run at the end of the Rule 26(f)
conference. This would maintain the possibility of responses at a time as early as can be had under present practice, and it would simplify the rule. And the concerns that weighed against the approach may be overdrawn. Real problems arose under earlier practice that gave the plaintiff a head start on discovery and that allowed the party who first began discovery a priority that delayed the time when other parties could begin discovery.
Eliminating any priority, as Rule 26(d)(2) has accomplished, avoids this problem. Defendants would be on an even footing with plaintiffs — although they would not be able to serve requests with the complaint, they could serve requests before the 26(f) conference and establish equality in time to respond. Defendants, further, would have the advantage of more time to consider their responses, and the Rule 26(f) conference would be more effective if all parties know what first rounds of discovery are
contemplated.
The choices with early discovery requests, then, are to carry the concept forward in some form, or to abandon it; to impose an interval after the action is filed before discovery requests can be served, as in the present sketches; allow
requests at any time after filing; and to set the time to respond from the Rule 26(f) conference. These issues were found
important. There may be problems with allowing no-delay discovery in relatively simple cases, and there are many of them on the federal docket. Some judges allow the parties to skip the
scheduling-order conference, believing it can be an unnecessary burden in these simple cases. And there is a related problem. Parties commonly do not now comply with clear discovery
deadlines; the situation will be aggravated if any complexity is added to the rules, requiring parties to remember the deadlines for requests made before a Rule 26(f) conference. If the Rule 16(b) conference is held long enough after the conference,
indeed, the conference could become a de facto motion to compel. Misgivings were expressed about the idea of any discovery requests before the Rule 26(f) conference. Experience suggests that most lawyers defer discovery as late as they can. Most will wait for the Rule 26(f) conference. Any version of these
proposals will increase the complexity of the time provisions — even if Rule 26(d) clearly sets the time to respond to pre-conference requests, it may be necessary to cross-refer back to this provision in other discovery rules. It is too much to expect all parties to remember the 26(d) provision when they look to the other rules for response times. Moreover, linking the response times to discovery requests to the Rule 26(f) conference may introduce some ambiguity into the Rules because the conferences are often informal and there may be disputes as to their timing. Unless the Committee concludes that an opportunity for early
discovery would be used frequently, the added complexity may cost more than the marginal benefits.
It would be possible to avoid this complexity by allowing early requests and setting the time to respond under the regular rules. But defendants could be at a severe disadvantage — it can be difficult enough to serve an answer 21 days after service of the complaint, much less to provide meaningful responses to discovery requests a few days after that. In place of the old-time jockeying for priority we could encounter severe
impositions.
A different concern was recalled from the Dallas discussion. It is common to request an extension of time to respond. If early requests are allowed, setting the time to respond from the Rule 26(f) conference does not allay all concerns. As compared to present practice, the party who served the early request could argue against a request for more time that the responding party already has enjoyed more time because the requests were served before the ordinary time limits began to run. And in many cases the defendant gains little advantage from early service — it is easy to anticipate what most discovery requests will be.
It was agreed that this topic should be carried forward. Numerical Limits on Discovery Requests: The reduction to 15 as the presumptive numerical limit on Rule 33 interrogatories, and introduction of a presumptive limit of 25 requests to admit (with an exception for requests to authenticate documents), were
generally supported in Dallas. There was a difference of views on the proposals to limit the presumptive number of depositions to 5, and the presumptive duration to 4 hours. And there were real concerns about attempting to enforce a presumptive limit of 25 Rule 34 requests to produce. One participant urged a different Rule 34 limit, focusing on the number of "custodians" whose records must be searched.
The question about deposition limits was whether there is any need to tighten present practices. Several participants thought the present limits work well — more than 5 depositions are taken only when there is good reason, and it would be a waste of time to require party agreement or a court order for more. So for the 7-hour presumptive time limit. On the other hand, there is wisdom in Professor Gensler’s observation that it is easier to manage up from a lower limit than to manage down from a higher limit. And "there is discovery abuse at the margin; lowering the margin can be useful."
One judge noted that his standard scheduling order sets a limit at 15 Rule 34 requests, and it works. A party can impose as much burden with 15 requests as with many more. The serious
Protocols for particular types of litigation may work, but it would be difficult to write limits into a rule. How many sources need be explored? How far back in time? How many hours should the responding party be required to devote to the search? "We need a lot more discussion."
It was agreed that these proposals should be carried forward for discussion with the Advisory Committee.
Objections and Responses: The sketches that would sharpen the specificity of Rule 34 objections, and require a statement whether anything is being withheld under an objection, were received without much difficulty. The proposal to address explicitly the alternative of actually producing documents, rather than permitting inspection, was found inadequate as to "rolling production." Often it will not be feasible to produce all documents at the time set for making objections or stating that inspection will be permitted. A new sketch provides that the response may state a date for production "no later than the date for inspection stated in the request or a later reasonable
[time]{date} stated in the response." This seems a satisfactory basis for going forward at the moment.
The Subcommittee consensus is to not proceed with adding to Rule 26(g)(1) a certification that a discovery request, response, or objection is "not evasive." There were numerous objections in Dallas that this is unnecessary and may prompt other litigation. Contention Discovery: There was not much discussion of the
sketches on timing contention discovery under Rules 33 and 36. These topics may be removed from the current package. They appear to be unnecessary given the proposed presumptive limits on those discovery devices.
Cost-shifting: It was agreed that at least the sketch that would make cost-shifting a more prominent feature of Rule 26(c) should go forward.
Preservation in Rules 16(b)(3), 26(f): There was no controversy about the sketches that would add references to preservation of electronically stored information to the permitted contents of scheduling orders and items in a discovery plan. Agreements of the parties under Evidence Rule 502(e) may also be added to these lists, in hopes of increasing familiarity with a practice that seems to remain unfamiliar to many lawyers.
Proportionality: Several participants in the Dallas discussion were wary of adding "proportionality" as a concept to Rule 26(b)(1), but many of the same participants expressed
appreciation of the nuanced protective provisions in Rule
26(b)(2)(C)(iii). The concern with "proportionality" is that it is a new term that, without further definition, will generate
uncertainty and disputes. Early attempts to tie proportionality to Rule 26(b)(2)(C)(iii) have seemed uninspired. Judge Campbell has prepared a draft that resolves the cross-reference problem by relocating the factors listed for consideration in (iii) to
become part of the scope of discovery in (b)(1). The draft also discards substantial parts of present (b)(1), including the cross-reference to (b)(2) and the provision for expanding
discovery beyond the parties’ claims and defenses. The provision that information may be sought if it is reasonably calculated to lead to the discovery of admissible evidence is shortened to say only that "Information need not be admissible in evidence to be discoverable."
This sketch was admired as an elegant solution. It reduces the open-endedness of "proportional."
Agreement was expressed with the view that adding the (iii) factors to explain what "proportional" means relieves the risk of uncertain meaning. And invoking "proportional" here will support the current draft of a new proposed Rule 37(e) on preservation and sanctions, which invokes proportionality in preservation.
A question was raised as to how much of (iii) should be
transferred to the scope of discovery in (b)(1). The first sketch leaves (iii) in a form that requires the court to limit the
extent of discovery if "the burden or expense of the proposed discovery outweighs its likely benefit." That would establish a second-order limit. A request is within the scope of discovery allowed by (b)(1) only if it is "proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, and the importance of the discovery in resolving the issues." But even a request that satisfies these tests can still be limited if the burden or expense outweighs its likely benefit. Conceptually, that can make sense. The initial scheduling order can set broad limits on the scope of proportional discovery. But a subsequent actual request may seem to impose burdens that outweigh the possible benefit.
The concern with a second-order limit arising from a
separate cost-benefit analysis under a revised 26(b)(2)(C)(iii) was addressed by suggesting that this part of (iii) also should be moved to (b)(1). (iii) then would become a cross-reference back to (b)(1). This approach would be developed further by striking a few words from present (b)(2)(C): " * * * the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines * * *." Deleting those words would make better sense of it. (b)(1) defines the scope of permissible discovery. Disproportional discovery is not otherwise allowed by these rules. Nor, for that matter, can a local rule authorize discovery that is not authorized by the national rules. In this way (b)(2)(C)(iii) would become a means
of enforcing (b)(1).
Rule 26(b)(1) includes this sentence: "Relevant information need not be admissible at trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence." Discussion in Dallas underlined the concern that this provision has led many lawyers to conclude that there is no
effective limit on the subjects of discovery: Every request is proper because it might lead to information that supports a claim or defense, including claims or defenses the parties have not yet imagined. It might be possible to delete this sentence entirely; admissibility then would be simply one element to weigh in
applying the proportionality calculus. But there may be some value in retaining part of this longstanding provision. It was added in large part to respond to early decisions that denied discovery of hearsay, even though learning the hearsay could easily lead to admissible forms of the information described by the hearsay. If it is deleted entirely, there is a real prospect that lawyers will argue that the deletion means more than was intended — the argument will be made by lawyers who do not bother to learn what was intended by reading a Committee Note, and also by lawyers who know what was intended but hope to persuade a
court to adopt a different meaning. It seems better to go forward with the revised version: "Information need not be admissible in evidence to be discoverable."
There was no discussion of the proposal to eliminate the provision that allows discovery of the subject matter of the action, going beyond matter relevant to any party’s claim or defense, on showing good cause. Earlier discussions have
suggested that this attempt in the 2000 amendments to distinguish between lawyer-managed discovery and judge-managed discovery, undertaken with an eye to encouraging more involvement by judges otherwise not inclined to manage discovery, has not had any
significant impact.
Claims or Defenses Stated in the Pleadings: A last-minute sketch suggested that the scope of discovery might be made more precise by adding a limit: "any matter that is relevant to any party’s claim or defense as stated in the pleadings * * *." This rule text would reflect the statement made in the 2000 Committee Note. But it could needlessly complicate flexible practice. A judge called on to resolve discovery issues commonly finds that the parties have revised the issues reflected in the pleadings, without bothering to tidy up the pleadings. The scope of
discovery should not be tied to the pleadings. This provision might have the further effect of augmenting the pressures arising from the Twombly and Iqbal pleadings decisions, forcing parties to worry still more that they must augment the pleadings to be assured of adequate discovery opportunities. This sketch will not go further.
Sketch Rule 26(b)(1):
Putting these proposals together, the sketch of a revised Rule 26(b)(1) would be:
(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Information [within this scope of discovery]{sought} need not be admissible in evidence to be discoverable. —
including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. 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 calaculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
Other revisions would be made in Rule 26(b)(2). Subparagraph (A) would incorporate references to proposed limits on the
numbers of discovery requests and to the length of depositions. Subparagraph (B) would be amended to refer to the scope of
discovery under (b)(1) rather than to subparagraph (C). And subparagraph (C) would be revised to reflect the transfer of (iii) to (b)(1):
(C) When required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it
determines that: * * *
(iii) the burden or expense of the proposed discovery is outside the scope permitted by Rule 26(b)(1) outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
Cooperation: It was agreed that the earlier sketch revising Rule 1 should go forward in part. This part would become: "[These
rules] should be construed, and administered, and employed by the court and parties to secure the just, speedy, and inexpensive determination of every action and proceeding." The next part
would be dropped. This part would have added these words: "and the parties should cooperate to achieve these ends." The concept of "cooperation" seems too vague, and thus fraught with the
