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Opening Statement from Senator Coons on Proposed Rules Changes – eDiscovery Trends

Yesterday, we discussed the opening of a congressional hearing opened with at least one senator voicing concerns about whether the proposed changes to the Federal rules (drafted and approved for public comment) would be effective at curbing the skyrocketing costs of discovery.  Based on a couple of questions that I received about his comments, I located the Opening Statement for the hearing in question and thought it would be of interest.

As noted yesterday, Congress ultimately will review the changes before they go into effect near the end of 2015.   U.S. Sen. Christopher Coons (D-Del.), who chairs the Subcommittee on Bankruptcy and the Courts, raised some interesting questions and concerns in his Opening Statement for the hearing to examine the proposed changes to the Federal Rules of Civil Procedure proposed by the Judicial Conference’s Advisory Committee on Civil Rules.  Among other observations, Senator Coons noted that:

“Five times since 1980, the Judicial Conference has tweaked civil discovery rules in an attempt to curb perceived abuses.  In 1980, a pretrial conference was added to reduce the burdens of discovery.  In 1983, proportionality was first added as a limitation on discovery.  In 1993, the rules were amended to add presumptive discovery limits.  In 2000, the scope of discovery was narrowed.  Finally, just a few years ago in 2006, the proportionality provision instituted in 1983 was revised in an attempt to reflect the increased burdens of electronic discovery.

Today, we are faced with yet another incremental restriction on discovery.  Why would we expect these changes to work where others have failed?  And if discovery cost is not a problem in the majority of cases, is it appropriate to narrow the scope of discovery across the board?”

He also raised the question of whether judges are doing what they can to manage proportionality with the current rules, wondering whether judges are overworked:

“Commentators are in general agreement that judges could do more under the Rules than they are doing currently to narrow issues for discovery and reduce the burdens on producing parties.  Why aren’t they doing so?  Are judges overworked?”

The text of Senator Coons’ Opening Statement is available from his web site here.

So, what do you think?  Will the new rules changes penalize plaintiffs in smaller cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

By the way, one of my favorite blogs in eDiscovery topics and cases is Josh Gilliland’s Bow Tie Law’s Blog.  Congratulations to Josh for his 400th post!

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