Friday, January 31, 2014
Today I submitted my comments on the proposed amendments to the Federal Rules of Civil Procedure. My comments do not yet appear on the government's web site, so in the meantime you can see them on my SSRN page here.
There are over 500 comments posted on Regulations.gov as of this morning, and many of the comments provide an excellent provision-by-provision analysis of the proposals. I chose instead to offer four more general observations in opposition to the proposals, as follows:
First, the most objective and reliable measure of "cost" before the [Advisory] Committee is contained in the 2009 study by the Federal Judicial Center, which shows neither out-of-control costs nor an increase in costs over time. Second, one objective and reliable measure of "delay" is case disposition time, a statistic maintained by the Administrative Office of the Courts. The AO's statistics show that the median disposition time for a civil case (from case filing to final disposition) has maintained stability for twenty-five years, from 7 months in 1986 to a still-brisk 7.8 months in 2012, a difference of about 24 days. Third, contrary to the Committee's apparent belief, lawyers and judges are well aware of the concept of "proportionality" in discovery and apply it frequently. Fourth, the federal courts are widely perceived to favor defendants, and the adoption of these proposals will intensify that perception, because the proposals do, in fact, favor defendants.
We reported on January 1 that approximately 86% of the commenters at that time opposed the amendments. As of January 21, approximately 80% opposed.
We also reported earlier that Professor Brooke Coleman testified in opposition to the proposal to abrogate Rule 84 on January 9 before the Advisory Committee in Phoenix. A transcript of the hearing for that day is now posted here.
The deadline for submitting comments is February 15, 2014.