|
A. Overview
The FRCP were originally promulgated by the U.S. Supreme Court on December 20, 1937. Since that time, they have been amended 24 times, most recently in April 2000,
with changes made effective as of December 1, 2000. The Supreme Court Order provides that the amendments "shall govern all proceedings in civil cases thereafter commenced and,
insofar as just and practicable, all proceedings in civil cases then pending." Therefore, any case which is active in federal court on December 1, 2000, is subject to the amendments.
The new amendments to the Rules of Civil Procedure appear to increase judicial oversight of discovery.
B. Length of Depositions - One Day of Seven Hours Rule 30(d)(2)
The new amendments limit depositions to seven hours on a single day. Only actual deposition time counts against
the seven-hour limit: reasonable lunch and other breaks do not count against the seven hours. The time limit may be extended by stipulation, if necessary, and case-specific orders
directing shorter depositions or limited periods on several days are likewise permitted.1 Otherwise, a court order is necessary to extend the time.2
Considerations which may necessitate additional time necessary include the following:
Whether the witness needs an interpreter;
Whether the examination covers events occurring over a long period of time;
Whether the witness will be questioned about lengthy documents;
Whether documents have been requested but not produced, further examination may be necessary once the documents are produced;
In multi-party cases, the need for each party to examine the witness;
Whether the witness' lawyer wants to examine the witness;
Expert witnesses may require more time than fact witnesses; and
Whether the witness or other person impedes or delays the examination. Of course, this could include anything from a medical emergency to a power outage, but it applies equally to
interference by deposition participants: new Rule 30(d)(3) allows sanctions against any person who impedes or frustrates fair examination of a witness, including attorneys who make
improper objections or give directions not to answer prohibited by Rule 30(d)(1).3
The Rule anticipates (accurately, it is to be hoped) that parties will cooperate, and the Advisory Committee recommends that "preoccupation with timing is to be avoided."
C & D. Limiting the Scope of Discovery and Impact on Initial Disclosure Requirements
Rule 26
Prior to the year 2000 amendments, Rule 26 allowed local districts to opt-out of the requirement call for the filing of initial disclosures. This option is no longer
available. The new amendments are intended to establish national uniformity.4 However, although now universally applicable, the disclosure obligation has been narrowed by the amendments. Formerly, it will be recalled, Rule 26 obliged each party to disclose witnesses and documents "relevant to disputed facts alleged with particularity in the pleadings" or information "relevant to the subject matter involved in the pending action." Under the new Amendments, however, disclosure is required only of those witnesses and documents that the disclosing party "may" use to support "claims" or "defenses" "unless solely for impeachment." This removes the former requirement that counsel disclose information harmful to their clients without a formal discovery request. A party is no longer obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use.5 This standard also applies to depositions.
Affirmative defense information must be disclosed; as a result, boilerplate defenses (i.e., laches, accord and satisfaction, etc.) are discouraged. If you "may" use the
information to support a claim or defense (that is, if there is a chance that it will be used), it must be produced. If you do not disclose the information and you try to use it later in
dispositive motions or at trial, you will be barred.6 Conversely, by carefully drafting the pleadings to focus on the heart of the issues, you can control disclosure.
New rule 26 also exempts eight categories of cases from the disclosure requirement, estimated to be about 1/3 of all civil cases.7
(i)an action for review on an administrative record;
(ii)a petition for habeas corpus or other proceeding to challenge a criminal conviction or sentence;
(iii)an action brought without counsel by a person in custody of the United States, a state, or a state subdivision;
(iv) an action to enforce or quash an administrative summons or subpoena;
(v) an action by the United States to recover benefit payments;
(vi) an action by the United States to collect on a student loan guaranteed by the United States;
(vii) a proceeding ancillary to proceedings in other courts; and
(viii) an action to enforce an arbitration award.
This list was developed after a review of the categories excluded by local rules in various districts. The descriptions are generic and are intended to be administered by the parties -
and, when needed, the courts - with the flexibility needed to adapt to gradual evolution in the types of proceedings that fall within these general examples. Cases which are excluded are
also exempt from Rule 26(f) conferences and the subdivision (d) moratorium on discovery prior to the conference. Discovery may begin immediately for exempted cases.
Parties may also agree to forego disclosure. If they cannot agree to forego disclosure, they may present the matter to the judge by objecting to disclosure. If a party is served or joined
after the 26(f) conference, no new conference is required, but disclosures must be made within 30 days of joinder or service of a claim on a party in a defensive posture. Objection during
a 26(f) conference stays disclosure until the court can rule.
Rule 26(b)(2) was amended to remove the previous permission for local rules that establish different presumptive limits on discovery activities covered by Rules 30, 31, and 33. The limits
can be modified by court order or agreement in an individual action, but "standing" orders imposing different presumptive limits are not authorized. Because there is no national
rule limiting the number of Rule 36 requests for admissions, the rule continues to authorize local rules that impose numerical limits on them.
Rule 26(d) was amended to remove the prior authority to exempt cases by local rule from the moratorium on discovery before the 26(f) conference, but the eight exempted categories under
26(a)(1)(E) are excluded from 26(d). The parties may agree to disregard the moratorium where it applies, and the court may so order in a case, but "standing" orders altering the
moratorium are not authorized.
Local rules may also not opt out of the Rule 26(f) requirement. This was found to be one of the most successful changes made in the 1993 amendments.
E. Broadening Sanctions for Failure to Amend Prior Discovery Responses - Rule 37
The amendment to Rule (c)(1) explicitly adds failure to comply with Rule 26(e)(2) to supplement
discovery responses as information becomes available as a ground for exclusion sanctions. This only applies when the failure to supplement was "without substantial
justification." The Advisory Committee indicates that even if the failure was not substantially justified, a party should be allowed to use the material that was not disclosed if the
lack of earlier notice was harmless. The 10th Circuit has been hesitant to pull the trigger on Rule 37. Interestingly, the 2nd Circuit has reversed in 7 of 8 cases where sanctions were
imposed.
F. Changes to Rule 5(d) Filing of Discovery Material
Rule 5(d) was amended to provide that Rule 26(a)(1) and (2) disclosures, as well as discovery requests and responses under
Rules 30 (depositions upon oral examination), 31 (depositions upon written questions), 33 (interrogatories), 34 (production of documents and things and entry upon land for inspection and
other purposes), and 36 (requests for admission) must not be filed with the court until they are used in the action. Discovery requests include deposition notices, and discovery responses
include objections. This rule supersedes and invalidates local rules that forbid, permit, or require filing of these materials before they are used in an action. Rule 26(a)(3)
disclosures, however, must be promptly filed as provided by the Rule.
Footnotes
1.
*Note from Magistrate Judge Ronald Boyce* A recent survey indicated that the average (mean) deposition time is 5 hours. Less than 20% of attorneys surveyed had ever had depositions lasting greater than 7 hours. You can no longer use the "Old Navy Rule" - You can't build the officers' club first, then build the air strip - you've got to get right to it!
2. For Rule 30(b)(6) depositions, the deposition of each designated person is considered a separate deposition.
3.
Only three circumstances warrant a direction that the witness not answer: 1) to claim a privilege or protection against disclosure (i.e. work product); 2) to enforce a court directive limiting scope or length of permissible discovery; or 3) to suspend a deposition to enable presentation of a motion under Rule 30(d)(3) for sanctions.
4.
Prior to the amendment 1/3 of the Districts required initial disclosures; 1/3 did not; and 1/3 went both ways. Now all Districts must comply. It cannot be altered by local rule. Many lawyers surveyed by the Federal Judicial Center ranked adoption of a uniform national disclosure rule second among proposed rule changes (behind increased availability of judges to resolve discovery disputes) as a means to reduce litigation expenses without interfering with fair outcomes. T. Willging, J. Shapard, D. Stienstra & D. Miletich. Discovery and Disclosure Practice, Problems, and Proposals for Change (Federal Judicial Center, 1997), 44-45. National uniformity is also a central purpose of the Rules Enabling Act of 1934, as amended, 28 U.S.C. ¤¤2072-2077. Results of the survey are published in 39 Boston Col. L. Rev. 517-840 (1998).
5.
This also raises some questions: What about third-person Rule 45 Subpoenas? These are not governed by the Rule. What about background information? There is not much guidance given in the Rule itself.
6. See exclusion sanction of Rule 37(c)(1).
7. Rule 16, F.R.C.P. allows a court to order disclosure by a party. Does this include exempt parties? An inconsistency?
8. The parties may now participate by phone, but most were ignoring the face-to-face requirement anyway, so this is no big change. The court may require a face-to-face meeting.
|
