Major changes to the Federal Rules of Civil Procedure

Colorado courts often look to the Federal Rules of Civil Procedure for guidance when interpreting the CRCP. The reasoning has been that Colorado’s rules are substantially similar to the Federal rules. That may be changing. As noted HERE by the Institute for the Advancement of the American Legal System, the Judicial Conference Advisory Committees on Bankruptcy and Civil Rules have proposed amendments to their respective rules and forms. Specifically, Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and Appendix of Forms.

HERE is a link to the redline copy of all the changes, including substantial changes to the Bankruptcy Rules.

Three significant changes are:

1) The scope of discovery under Rule 26. The proposed change includes this change to 26(b)(1), which would now read in its entirety as follows:

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 need not be admissible in evidence to be discoverable.

2) A new procedure for early requests for documents would also be added as follows:

(2) Early Rule 34 Requests.

(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:
(i) to that party by any other party, and
(ii) by that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered as served at the first Rule 26(f) conferences.

3) A completely new Rule 37(e) – Failure to Preserve Discoverable (not just electronic) Information. For example, in the event that discoverable information has not been preserved, the court may “impose any sanction listed in Rule 37(b)(2)(A) or give an adverse- inference jury instruction, but only if the court finds that the party’s actions:
(i) caused substantial prejudice in the litigation and were willful or in bad faith; or
(ii) irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.”

The proposed rule also includes a detailed list of factors to be considered in assessing a party’s conduct.

Other important changes were made to timelines, and the number of requests for admission were presumptively limited.

“All comments on these proposed amendments will be carefully considered by the rules committees, which are composed of experienced trial and appellate lawyers, judges, and scholars. Please provide any comments on the proposed amendments, whether favorable, adverse, or otherwise, as soon as possible but no later than February 15, 2014. Comments concerning the proposed amendments may be submitted electronically by following the instructions at . Hard copy submissions may be mailed to the Committee on Rules of Practice and Procedure, Administrative Office of the United States Courts, Suite 7-240, Washington, D.C., 20544. All comments are made part of the official record and are available to the public.”

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