Federal Discovery Rules About To Change

Rules of Civil Procedure

Effect on Injured Clients’ Claims in Texas Courts 

The U.S. Supreme Court has made several landmark decisions during this session that have been widely analyzed. The high court has also approved several significant changes to the Federal Rules of Civil Procedure (FRCP) that of course got little, if any, attention in the press. 

Although most personal injury claims are brought in Texas state courts, Texas typically adopt the federal rules. So expect the changes to FRCP to also influence changes to the Texas Rules of Civil Procedures (TRCP), possibly as early as next year.

New Discovery Rules 

Discovery rule changes that have been approved by the U.S. Supreme Court include:

  • Eliminating the discovery of information that could lead to admissible evidence
  • Relying more heavily on a proportionality test that weighs costs with benefits and what’s at stake
  • Putting burden on party that objects to production of evidence to state whether documents are being withheld
  • Changing rules governing preservation and destruction of electronically stored information
  • Reducing time for serving summons and enter scheduling orders

What is Discovery and Why is it Important?

Discovery is the court-supervised process by which both parties are given the opportunity to review opposing party’s evidence. Once you file a lawsuit, the defendant is mandated to hand over certain evidence in a timely manner and in accordance with the rules of civil procedure. For example, you can subpoena cell phone records to determine whether the other driver was texting at the time of the accident. Likewise, you can seek black box data from a tractor-trailer company to reconstruct the driver’s actions just prior to and during the crash. In a case involving a defective auto part, discovery would allow you to depose principals of the corporation who have knowledge about the auto part testing and recall actions.

Discovery is a vital part of a personal injury lawsuit. Without a discovery process, you would likely not receive much of the evidence necessary to prove your claim.

Limits to Scope of Discovery Could Hurt Plaintiffs 

The new rule may limit scope of discovery through a more stringent balancing test. FRCP Rule 26 states:

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 importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, 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.

Larger corporations can typically absorb costs and time involved in producing discovery, whereas the injured individual is usually not able to do so. Thus the limitations are likely to have a greater impact on a plaintiff. Corporations have an out with the cost excuse for which plaintiffs may have to overcome, costing plaintiffs more money in legal representation and time to resolve the lawsuit. The defendant’s stalling tactic is already common in lawsuits involving big corporations.

The new rules go into effect on December 1st unless Congress modifies them.

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