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What Amendments Weren't Made on December 1, 2015

There has been a lot of discussion about the amendments that were made to the Federal Rules of Civil Procedure on December 1, 2015, . . . .in webinars, news articles and internally at law firms. It's also interesting to note the changes to the Rules that were discussed, but not actually proposed by the Advisory Committee on Civil Rules. See page 171 of the Agenda Book of the Committee on Rules of Practice and Procedure from May 2015, (see: , which is part of a report by the Advisory Committee to the Chair of the Standing Committee on the Rules of Practice and Procedure (Judge Sutton of the Sixth Circuit). The report notes that the committee considered changes to the Rules that would have changed to a requester pays system of discovery. Back in 1978, in Oppenheimer v. Sanders, the Supreme Court ruled that, "the presumption is that the responding party must bear the expense of complying with discovery requests, but he may invoke the district court's discretion under Rule 26 (c) to grant orders protecting him from 'undue burden or expense' in doing so". As the report notes, the current Federal Rules of Civil Procedure only direct the requester to pay for discovery as a kind of penalty (unjustified certification under FRCP 26(g) that a request was not made for an improper purpose or under 28 U.S.C. 1927 if party multiplies proceedings in any case unreasonably or vexatiously), or where there is undue burden (under FRCP 26(b)(2)(B) for not reasonably accessible ESI; a disproportionate burden under 26(b)(2)(C) on the responding party; or if a 26(c) protective order protects a party from undue burden or expense).

The report discusses the possibility of a 'loser pays' system in whichever party that didn't prevail in case would have to cover the costs of discovery. This system is used in the United Kingdom. It notes the influence of patent troll bills introduced in Congress which require requesters to pay after core information for a claim or defense is disclosed.

The committee raises the possibility that a requester pays system could solve the problem of over discovery, or perhaps be best if only applied to certain types of cases or certain types of discovery. It suggests that cost bearing need not be only discretionary (as it is now) but could be mandated on a party in certain situations. It would be possible to broaden 26(a) initial disclosures beyond the information needed for claims and defenses.

Intriguingly the report also suggests sampling of inaccessible ESI sources in order to see if the cost and usefulness of the retrieved data would justify the burden. That would create a need for some very quick forensic work on hard drives. Maybe in the future . ..

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