[Editor’s Note: The opinions and positions are those of the author.]
On May 11, 2023, the federal Advisory Committee on Civil Rules (the “Advisory Committee”) sent its Report to the Committee on Rules of Practice and Procedure (the “Rules Committee”).
The Advisory Committee recommended a “small” amendment to Fed.R.Civ.P. 12(a), “small amendments” to Rules 16(b)(3) and 26(f)(3), a new rule on MDL proceedings, and provided information on other projects, including additional Discovery Subcommittee projects.
All of the proposals were on the Rules Committee’s June 6, 2023, meeting agenda .The summary report of the Rules Committee is posted at september_2023_standing_rules_report.pdf (uscourts.gov).
“The Standing Committee independently reviews the findings of the advisory committees and, if satisfied, recommends changes to the Judicial Conference, which in turn recommends changes to the Supreme Court. The Court considers the proposals and, if it concurs, officially promulgates the revised rules by order before May 1, to take effect no earlier than December 1 of the same year unless Congress enacts legislation to reject, modify, or defer the pending rules. ” How the Rulemaking Process Works | United States Courts (uscourts.gov)
This blog addresses the privilege log proposals and the Rule 12(a) proposal. The proposals to Rules 12(a), 16(b)(3), and 26(f)(3) were unanimously approved by the Rules Committee and remain pending at present.
PROPOSED PRIVILEGE LOG AMENDMENTS
The privilege log proposals as to Rules 26(f)(3) and 16(b)(3) are, in my view, significant. The purpose of the proposals is “to call for development early in the litigation of a method for complying with Rule 26(b)(5)(A).” Fed.R.Civ.P. 26(b)(5)(A) requires preparation of a privilege log.
Rule 26(f)(3) provides that a discovery plan must state the parties’ views on any issues about claims of privilege or work product. The proposed amendment to Rule 26(f)(3) would add that the discovery plan must include the parties’ views on “the timing and method for complying with Rule 26(b)(5)(A)….”
The Advisory Committee notes that compliance with the privilege log requirement of Rule 26(b)(5)(A) “can involve very large costs….” It adds that the privilege logging Rule was intended to provide flexibility; however, it has not been applied that way, “sometimes imposing undue burdens.”
The Advisory Committee then explains that:
This amendment directs the parties to address the question how they will comply with Rule 26(b)(5)(A) in their discovery plan, and report to the court about this topic. A companion amendment to Rule 16(b)(3)(B)(iv) seeks to prompt the court to include provisions about complying with Rule 26(b)(5)(A) in scheduling or case management orders.
This amendment also seeks to grant the parties maximum flexibility in designing an appropriate method for identifying the grounds for withholding materials. Depending on the nature of the litigation, the nature of the materials sought through discovery, and the nature of the privilege or protection involved, what is needed in one case may not be necessary in another. No one-size-fits-all approach would actually be suitable in all cases.
In some cases, it may be suitable to have the producing party deliver a document-by-document listing with explanations of the grounds for withholding the listed materials. In some cases, some sort of categorical approach might be effective to relieve the producing party of the need to list many withheld documents. For example, it may be that communications between a party and outside litigation counsel could be excluded from the listing, and in some cases a date range might be a suitable method of excluding some materials from the listing requirement. These or other methods may enable counsel to reduce the burden and increase the effectiveness of complying with Rule 26(b)(5)(A). But the use of categories calls for careful drafting and application keyed to the specifics of the action.
Requiring that discussion of this topic begin at the outset of the litigation and that the court be advised of the parties’ plans or disagreements in this regard is a key purpose of this amendment. Production of a privilege log near the close of the discovery period can create serious problems. Often it will be valuable to provide for “rolling” production of materials and an appropriate description of the nature of the withheld material. In that way, areas of potential dispute may be identified and, if the parties cannot resolve them, presented to the court for resolution.
Early design of methods to comply with Rule 26(b)(5)(A) may also reduce the frequency of claims that producing parties have over-designated responsive materials. Such concerns may arise, in part, due to failure of the parties to communicate meaningfully about the nature of the privileges and materials involved in the given case. [emphasis added].
The proposed amendment to Rule 16(b) would permit a court to include “the timing and method for complying with Rule 26(b)(5)(A) in its scheduling order. Additionally, the words “and Management” are added to the title of the Rule.
The note to Rule 16 states:
Because the specific method of complying with Rule 26(b)(5)(A) depends greatly on the specifics of a given case there is no overarching standard for all cases. In the first instance, the parties themselves should discuss these specifics during their Rule 26(f) conference; these amendments to Rule 16(b) recognize that the court can provide direction early in the case. Though the court ordinarily will give much weight to the parties’ preferences, the court’s order prescribing the method for complying with Rule 26(b)(5)(A) does not depend on party agreement.
This proposal is a substantial step forward. Privilege logging is costly and complex. See, e.g., Categorical Privilege Log Presented Interpretive Issues.
Several years ago, in Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun, I suggested the same approach, writing that:
Rule 26(f) requires discussion concerning privilege. The form of a log can-should-must be discussed, and it can then be included in a Rule 16 report and a discovery plan, together with a Fed.R.Evid. 502 order. Additionally, a two-phase approach to logging may be prudent. For example, a phase 1 log may be less detailed. A party with cause to do so, could then request additional detail as to some of the withholdings in phase 2. … This combines cost-saving with a mechanism for obtaining additional detail, if needed. [emphasis added].
That type of discussion is precisely what the proposed Rule calls for.
PROPOSED AMENDMENT TO RULE 12(a)
The proposed amendment to Rule 12(a) is:
Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the 70 Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
(a) Time to Serve a Responsive Pleading. (1)
In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
(1) In General.
(A) A defendant must serve an answer….
The Advisory Committee explained that: “The amended structure recognizes the priority of any statute for all of paragraphs (1), (2), and (3).” The Advisory Committee described it as a “small” amendment.