Reed Smith Client Alert

Authors: David R. Cohen

A number of Reed Smith attorneys have been active in supporting the proposed amendments to the Federal Rules of Civil Procedure, particularly those aimed at narrowing the discovery process through consideration of proportionality factors, and reducing or eliminating sanctions absent bad faith conduct. Most recently, two sets of comments were submitted to the Judicial Conference Committee on Rules of Practice and Procedure by Reed Smith’s Records & E Discovery (RED) Team attorneys. The first set of comments, authored by Regis Stafford, Caitlin Garber, and Emily Dimond, discussed numerous benefits of the proposed Rule changes. The second set of comments, submitted by RED Practice Group Leader David Cohen, focused on responding to certain criticisms of the proposed amendments, including rebutting some criticisms offered by U.S. District Court Judges Shira A. Scheindlin and James C. Francis IV.

Cohen also testified in support of the Rules amendments at the public hearing in Washington, D.C. November 7, 2013, and participated in supporting the Rules in various CLE presentations, including two debates with Milberg LLP lawyer Ariana Tadler, where U.S. District Court Judge Craig Shaffer also weighed in. A number of Reed Smith lawyers, including Cohen, Stafford, Jim Beck, Dan Booker, and Melissa Geist, also assisted in the pro-amendment efforts of Lawyers for Civil Justice (LCJ), including facilitating the participation of a number of companies among the 308 total who signed a corporate letter supporting the Rules amendments. Reed Smith Philadelphia attorney Marc Goldich was an active participant in the subcommittees formed by the Federal Practice Committee of the Pennsylvania Bar Association and the Federal Courts Committee of the Philadelphia Bar Association, and he advocated for the Rules amendments on both committees. For further information about those comments, see Goldich’s article, “Differing Opinions From Pa. On FRCP Amendments,” published in Law360 February 19, 2014.

The period for public comments on the Rules was originally scheduled to conclude February 15, 2014, but ultimately was extended to February 18, 2014. All told, about 2,279 comments were submitted during the public comment period. According to LCJ’s latest estimate, comments opposing the rule changes outpaced comments in favor by about a 4–1 ratio, but a large number of the anti-rules comments were non-substantive in nature (sometimes only one or two sentences), so may not have much persuasive impact on the Advisory Committee. Most businesses strongly support the Rules amendments because of a widespread feeling that discovery has become far too broad and expensive in U.S. civil litigation, and because the threat of sanctions is too often used as a litigation tactic, even in the absence of any intentional wrongdoing.

Now that the comment period is closed, the next step is for the Advisory Committee to meet and devise its final recommendations by April 15, 2014. Following further stages, and if approved by the Supreme Court and Congress, the new Rules could become effective in December 2015.


Client Alert 2014-067