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FRCP Overhaul

By Nicholas J. Wittner

Some 75 years after the adoption of the Federal Rules of Civil Procedure (FRCP), an overhaul is imminent and it will fundamentally affect product liability litigation practice. The proposed amendments are categorized into early, active, and sustained judicial case management; discovery practice addressing scope, proportionality, and sanctions; and cooperation by lawyers in an adversarial process. The article herein takes up the first two, in that order. The amendments involving cooperation between lawyers are much more modest.

This article explains the most important amendments. The focus is primarily on discovery, because that is the crux of so many product liability cases, and the discovery amendments are more far-reaching. The cases have involved unduly burdensome discovery, and skirmishes over sanctions that have troubled courts, practitioners and companies alike. They have struggled to sort through a morass of conflicting standards over the duties of preservation of evidence (especially electronically stored information, dubbed ESI), the standards for imposing discovery sanctions, and the severity of the sanctions. The amendments should alleviate these problems.

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