The escalating cost of discovery in U.S. commercial litigation has garnered a lot of attention in recent years as requests for electronic discovery have spiraled out of control, with some defendants having to pay hundreds of thousands or even millions of dollars to respond to discovery requests in civil litigation. As one report succinctly put it: "[o]ur discovery system is broken."1
The federal Advisory Committee on Civil Rules (Committee) is currently contemplating a series of discovery-related changes to the Federal Rules of Civil Procedure. In the main, these changes would advance several proposals stemming from the 2010 Duke Conference on U.S. Civil Litigation that are aimed at reducing the costs and delays associated with unfettered discovery. The Committee would also establish clearer standards for imposing curative measures and sanctions when electronically stored information is lost.
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