Sunday, August 24, 2014
The controversial proposed amendments to the Federal Rules of Civil Procedure that were first published for comment in August 2013, somewhat modified after vociferous public comment, and approved by the Advisory Committee and the Standing Committee, are making their way to a vote by the full Judicial Conference at its meeting in September.
I thought it might be useful to review the proposals, a bit at a time, here. Needless to say, my comments are my own and I do not speak for any of my co-editors or the Law Professor Blogs Network. As I noted earlier on this blog, I submitted written comments in opposition to the amendments.
Since the 2010 Duke Conference, the Advisory Committee has repeated the mantra "that the disposition of civil actions could be improved, reducing cost and delay, by advancing cooperation among the parties, proportionality in the use of available procedures, and early and active judicial case management." (May 2014 Advisory Committee Report to the Standing Committee.)
Taking the "advancing cooperation" objective first, the only rule change that supposedly addresses this is the following addition to Rule 1:
These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. [Proposed deletions from the current rule are struck through; proposed additions to the current rule are underlined.]
Rule 1 remained substantively unchanged from its adoption in 1938 until 1993, when the words "and administered" were inserted into the second sentence after the word "construed." The Advisory Committee Notes explained in 1993 that the addition of those words was "to recognize the affirmative duty of the court to exercise the authority conferred by these rules to ensure that civil litigation is resolved not only fairly, but also without undue cost or delay. As officers of the court, attorneys share this responsibility with the judge to whom the case is assigned." (Adv. Comm. Notes to 1993 Amendments to Rule 1 (emphasis added).) Now, twenty years later, the Advisory Committee apparently feels that attorneys have snubbed this responsibility, and proposes adding a reference to "the parties" in the text of the rule, rather than in the Committee Note.
The newly proposed Committee Note reads in its entirety:
Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way. Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure. [emphasis added]
This amendment does not create a new or independent source of sanctions. Neither does it abridge the scope of any other of these rules.
As you can see, the actual text of the newly proposed rule still does not use any form of the word "cooperation." The use of that word appears only in the proposed Note.
The Committee does not define or give an example of "cooperation," stating only that it means "to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay" -- terms that are not further elaborated. The Committee does not address whether or how this envisioned duty of cooperation is enforceable. It rejects, without explaining why, concerns that the rule change may prompt "ill-founded attempts to seek sanctions for violating a duty to cooperate" or "the strategic use of 'Rule 1 motions.'" (May 2014 Adv. Comm. Rep.)
In its proposed Note, the Advisory Committee has linked "proportional," one of the watchwords of the day, to "cooperation," and admonished lawyers that these are necessary for "effective advocacy." Professor Paul Carrington, who was the Reporter for the Advisory Committee under Chief Justice Warren Burger, spoke at the first public hearing on the proposed amendments in November 2013. He criticized the proposed amendment to Rule 1 as suggesting "that lawyers are supposed to be not too vigorous on behalf of their clients if it would somehow be a pain to the other side." (Nov. Hearing at 60.)
Henry Kelston of Milberg LLP noted in response to a question:
There are genuine cooperators, there are pretend cooperators and then there are parties that don't even pretend to cooperate. And it makes a lot of difference in the way the litigation proceeds, which variety you're working with or against. (Jan. 2014 Hearing at 60-61.)
It seems doubtful that the change to Rule 1 will incentivize the "pretend cooperators" and those "that don't even pretend to cooperate" to change.