Thursday, October 20, 2016

Fitzpatrick & Norris on Discovery Costs and Post-Summary Judgment Fee-Shifting

Brian Fitzpatrick and Cameron Norris have posted on SSRN a draft of their article, One-Way Fee Shifting after Summary Judgment. Here’s the abstract:

New, defendant-friendly discovery amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. Although the discovery amendments created more controversy than perhaps anything the rulemakers have done in recent memory, defense-side advocates are pressing a still more ambitious proposal: to outright flip who pays for discovery, from the party who produces the discovery to the party who requests it. We share the view of most commentators that so-called "requester pays" is too extreme. But we also think the current regime — so called "producer pays" — errs too far in the other direction (even after the new amendments to the rules). In this article, we rely on economic analysis to offer a middle way: to ask plaintiffs to pay the cost of responding to their discovery requests only if they do not find anything trial worthy in those requests and lose their cases on summary judgment. Although Congress certainly has the power to implement our proposal, we believe that the rulemakers may be able to do so on their own as well.





October 20, 2016 in Discovery, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Tuesday, October 11, 2016

The End of an Era? Federal Civil Procedure After the 2015 Amendments

My article on the 2015 amendments to the FRCPs is now in print. It’s The End of an Era? Federal Civil Procedure After the 2015 Amendments, 66 Emory L.J. 1 (2016). Here’s the abstract:

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.

This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee’s earlier proposals and supporting documents, the final amendments — in light of their text, structure, and accompanying advisory committee notes — should be interpreted to preserve notice pleading and a robust discovery process. The more significant lesson of the 2015 amendments, therefore, may be to confirm the view that the amendment mechanism of the Rules Enabling Act is unlikely to generate consequential changes to the Federal Rules (for better or for worse). The process leading to the 2015 amendments was teed up almost perfectly for opponents of meaningful access and enforcement to make real, detrimental changes to federal pleading and discovery standards. Yet the final amendments ultimately did not do so.

Accordingly, the key battleground following the 2015 amendments will be in the federal courts themselves, as judges are called upon to interpret and apply the rules in particular cases. No doubt aware of this fact, Chief Justice Roberts has taken various steps to spin the recent amendments as making more significant changes than they actually do. These post-amendment moves are not legally authoritative and do not modify the law of civil procedure. But the Chief Justice and his allies may win the day if they are able to dominate the gestalt surrounding the 2015 amendments in a way that persuades lower court judges to take a more restrictive approach. Properly interpreted, the 2015 amendments do not support the Chief’s narrative. Recognizing this will be crucial for ensuring access and enforcement going forward.





October 11, 2016 in Adam Steinman, Discovery, Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (1)

Wednesday, September 7, 2016

Eighth Circuit Refuses to Set Aside Order that Missouri Disclose Its Execution Drug Suppliers

Last week the U.S. Court of Appeals for the Eighth Circuit issued its decision in In re: Missouri Department of Corrections. The case involves a subpoena that two Mississippi death row inmates served on the Missouri Department of Corrections (MDOC) seeking discovery relating to Missouri’s use of pentobarbital in lethal injections, including the identities of its pentobarbital suppliers. The inmates are challenging Mississippi’s execution method (which does not use pentobarbital) as violating the Eighth Amendment. 

MDOC moved to quash the subpoena, but the district court in Missouri denied the motion and ordered MDOC to produce most of the information sought by the inmates. The Eighth Circuit has now denied MDOC’s request for a writ of mandamus challenging that order. It’s a short six-page opinion, but it covers a lot of ground—from appellate mandamus, to whether a subpoena creates an undue burden under FRCP 45(d)(3)(A)(iv), to sovereign immunity, to the state secrets privilege.

Download In re Missouri DOC (8th Cir)






September 7, 2016 in Current Affairs, Discovery, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Friday, August 19, 2016

Federal Judge Orders Hillary Clinton to Answer Interrogatories in FOIA Case

Today U.S. District Judge Emmet Sullivan issued an opinion in Judicial Watch v. U.S. Department of State, a FOIA case seeking employment records relating to Huma Abedin, long-time aide to Hillary Clinton. In connection with the plaintiff’s request for discovery under FRCP 56(d), the court ordered that the plaintiff may serve interrogatories on Hillary Clinton but could not depose her.

From the opinion:

The Court directs Judicial Watch to propound questions that are relevant to Secretary Clinton’s unique first-hand knowledge of the creation and operation of for State Department business, as well as the State Department’s approach and practice for processing FOIA requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails and State’s processing of the FOIA request that is the subject of this action.

Download Opinion 2016-08-19 Hillary Clinton Interrogatories





August 19, 2016 in Current Affairs, Discovery, Federal Rules of Civil Procedure, In the News, Recent Decisions | Permalink | Comments (0)

Friday, July 15, 2016

Moriarty on the 2015 Amendments to the FRCP

Richard Briles Moriarty, Assistant Attorney General, State of Wisconsin, has published in the American Journal of Trial Advocacy, 39 Am. J. Trial Advoc. 227 (2015) (available on Westlaw), his article, And Now for Something Completely Different: Are the Federal Civil Discovery Rules Moving Forward into A New Age or Shifting Backward into A "Dark" Age?


This Article examines the 2015 Amendments to the Federal Rules of Civil Procedure. The author explains the purposes behind the Rules historically, identifies major changes made in 2015, and analyzes why the 2015 Rule changes are fundamentally unacceptable. The author concludes by discussing the troublesome committee appointment process that underlies the 2015 changes and proposing an appointment process consistent with the check-and-balance views of the Founders, which, among other benefits, could ultimately restore fair and useful discovery rules to the civil litigation system.

July 15, 2016 in Discovery, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Tuesday, June 28, 2016

How the Current Version of Rule 5 Frustrates Public Access to Discovery in the “Trump University” Lawsuit and Other Cases

            Most people know by now that Cohen v. Donald Trump, No. 3:13-cv-02519, is a class action in federal court in San Diego alleging that Trump University defrauded thousands of consumers who purchased real estate courses.  What is less widely reported is that the complaint alleges that Donald Trump violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), a federal statute passed in 1970 to make it easier to prosecute members of organized crime – e.g., the Mafia.  Specifically, the complaint alleges that Donald Trump violated RICO by conducting Trump University (the alleged criminal enterprise) through a “pattern of racketeering activity” consisting of crimes of mail fraud and wire fraud. 


The Discovery Sought by the News Media

            What does this have to do with the Federal Rules of Civil Procedure?  Well, hang on.  One of the latest skirmishes in the case is that major news media organizations (CNN, The Washington Post, CBS, and several others) have moved to intervene for the purpose of modifying the protective order so that the videotaped depositions of Donald Trump taken in the case may be released.   

            Earlier, the plaintiff tried to file portions of the videos in court as exhibits to his brief opposing Trump’s motion for summary judgment. The court returned the videos to the plaintiff for failing to comply with a court rule.  The plaintiff promptly moved to file “a series of electronic files of video excerpts from the depositions of Trump, taken on December 10, 2015, and January 21, 2016.”  Trump opposes the motion. 

            But meanwhile, plaintiff’s motion revealed the existence of two days of depositions of Trump in videotape form, of which plaintiff is only seeking to file a fraction.  The putative intervenors (the news media) want it all. 


Rule 5 Prohibits the Filing of Discovery in Court Until “Used in the Proceeding

            Perhaps one of the most somnolent of the Federal Rules of Civil Procedure is Rule 5, “Serving and Filing Pleadings and Other Papers.”  Since 2000, Rule 5(d)(1) has prohibited the filing in court of discovery requests and responses (including initial disclosures, depositions, interrogatories, requests for documents, and requests for admission).  From 1980 to 2000, Rule 5 allowed local courts to prohibit the filing of discovery.  (Of course, once a party “uses” the discovery “in a proceeding” – for example, as an exhibit to a summary judgment motion – it must be filed in court.) 

            In contrast, before 1980, Rule 5 required the filing of discovery – depositions, interrogatories, and so forth – in court.  The only reason that was publicly stated for the change to prohibiting the filing of discovery in court was that the copies for filing could be expensive and that the courts did not have enough physical storage space.  But now that everything is digital, it would seem that the issues of expense and physical storage space are moot.   

Continue reading

June 28, 2016 in Current Affairs, Discovery, Federal Rules of Civil Procedure | Permalink | Comments (1)

Monday, February 8, 2016

Discovery Protocol Results in More Settlements, Fewer Motions to Compel

I don’t know how I missed this when it came out, but better late than never.  The Federal Judicial Center has published a brief empirical study of the pilot project on initial discovery protocols in employment cases.  Emery G. Lee & Jason A. Cantone, Report on Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action (Oct. 2015).

One of the ideas floated at the 2010 conference on civil litigation held at Duke Law School was that pattern discovery (set forms) in particular case types might reduce discovery battles (and hence, “cost and delay”).  Another, related idea expressed at the conference was that initial required disclosures under FRCP 26(a) were generally not helpful.  The Advisory Committee did not officially pursue these ideas (in fact, it abolished all the forms following the FRCP).  However, a group of plaintiffs’ and defendants’ attorneys experienced in employment cases negotiated and finalized discovery protocols for those cases that replace the standard initial disclosures.  Judge John G. Koeltl and the Institute for the Advancement of the American Legal System (IAALS) facilitated the project.   

The protocols cover only cases alleging adverse employment action.  Certain cases are exempt from the protocols: class actions, and cases alleging only discrimination in hiring, harassment, or violations of FLSA, ADA, FMLA, or ERISA.

The protocols are posted on the FJC's website.  About 75 federal district court judges have adopted the protocols, and the FJC has now studied their effect.

As described by the FJC:

The Protocols create a new category of information exchange, replacing initial disclosures with initial discovery specific to employment cases alleging adverse action. This discovery is provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion. While the parties’ subsequent right to discovery under the F.R.C.P. is not affected, the amount and type of information initially exchanged ought to focus the disputed issues, streamline the discovery process, and minimize opportunities for gamesmanship. The Protocols are accompanied by a standing order for their implementation by individual judges in the pilot project, as well as a model protective order that the attorneys and the judge can use [as] a basis for discussion.

For example, among the many items the plaintiff is required to produce to the defendant are “diary, journal, and calendar entries maintained by the plaintiff concerning the factual allegations or claims at issue in this lawsuit,” and “the plaintiff’s current resume(s).”  Among the many items the defendant is required to produce to the plaintiff are “the plaintiff’s personnel file, in any form, maintained by the defendant, including files concerning the plaintiff maintained by the plaintiff’s supervisor(s), manager(s), or the defendant’s human resources representative(s), irrespective of the relevant time period” and “the plaintiff’s performance evaluations and formal discipline.”  

So now to the FJC’s study of the effect of the pilot project.  The FJC constructed a sample of 477 cases in the pilot program and a comparison sample (random and nationwide) of 672 recently-terminated cases alleging employment discrimination not in the pilot program.  Here are some of the results.  Please note that I constructed the table below based on the text in the FJC’s report:


Pilot cases



p value

(if given)

Number of cases




Mean disposition time in days




Median disposition time in days




Case outcomes:


o   Settlement




o   Voluntary dismissal (which could include

settlement, but not clear from docket)




o   Dismissed on Rule 12 motion




o   Resolved by summary judgment




o   Trial




o   Other (DWP, failure to exhaust)




Motions to dismiss filed




Motions for summary judgment filed




One or more discovery motions filed*




*Includes motions to compel and motions for protective order (apparently includes only contested, not stipulated, motions for protective order).

**Statistically significant.

Some of these findings are cause for celebration.  There were significantly fewer discovery motions filed in the pilot cases.  The pilot cases were more likely to result in settlement.  The pilot cases were less frequently dismissed on motion or resolved by summary judgment.  Fewer such motions were even filed in the pilot cases.   

As for case disposition time, the FJC seems almost apologetic that pilot cases were resolved faster than, but not statistically significantly faster than, non-pilot cases, stating, “The pilot does not, in short, appear to have an appreciable effect on reducing delay.”  But whether pilot or non-pilot, these cases last about nine or ten months from filing to disposition.  How much faster does anyone want?  Having practiced law in the 1980s and 1990s (including in Illinois state courts), I’d like to suggest that this is a rocket docket.  Once we account for the preliminary time periods allowed by the FRCP (up to 90 days to serve the complaint after filing and then up to 90 days to issue the scheduling order), and add a standard six months to complete discovery, that’s what we get – nine or ten months.  Where’s the “delay”?  (Not blaming the FJC for using this term: it’s the mantra used by discovery “reformers.”)

The FJC is, as always, careful to note the limitations of its study.  First, judges are free to adopt or not adopt the protocols, so the pilot cases came from only ten districts, and 75% of the pilot cases were in Connecticut or the Southern District of New York.  Second, because the initial disclosures were not usually docketed (and under FRCP 5, they would not be required to be), the FJC could not determine whether the parties “actually complied with the discovery protocols and exchanged the required initial disclosures.”  Finally, “this report makes no claim that the only factor differing between the pilot and comparison cases was the pattern discovery in the former,” and “caution is warranted before concluding that the pilot program caused the above described differences between the pilot and comparison cases.”

In my opinion, the pattern discovery approach should be pursued in more types of cases.  Having experienced attorneys on both sides negotiate protocols to produce the types of documents and information repeatedly sought in discovery in a particular kind of case represents a far more sensible, concrete, and helpful approach to improving discovery than the adoption of a vague “proportionality” standard. 

February 8, 2016 in Discovery, Federal Courts | Permalink | Comments (1)

Saturday, January 16, 2016

Advisory Committee Members Tout Rules Amendments on YouTube

We reported earlier that former and current members of the Civil Rules Advisory Committee (AC) are appearing in federal courthouses all over the country in an unprecedented "roadshow" produced by the ABA and the Duke Center for Judicial Studies that focuses on the proportionality amendments to the discovery rules.

Here's another step taken by former and current AC members that I believe to be unprecedented: they are starring in YouTube videos produced by the Federal Judicial Center.  (Yes, the federal judiciary has a YouTube channel!) 

There are five videos about the 2015 amendments. 

  1. Overview, by Judge David Campbell (chair of the AC until October 2015 and a member of the AC since 2005)
  2. Cooperation, by Judge Gene Pratter (member of the AC from 2011 to present).
  3. Proportional Discovery, by Judge John Koetl (member of the AC from 2007 to 2014 and chair of the Duke Subcommittee).
  4. Early and Active Case Management, also by Judge Campbell.
  5. Failure to Preserve Electronically Stored Information, by Judge Paul Grimm (member of the AC from 2009 to 2015 and chair of the Discovery Subcommittee).

Some observations, in no particular order:

  • In none of the videos do the speakers or the introductory frames indicate that they do not speak officially on behalf of the AC or the federal judiciary. In fact, there is every indication that are speaking officially.
  • If you only have time for one or two videos, watch Judge Campbell's overview and Judge Grimm’s ESI video. The other videos repeat a lot of the overview.
  • You might want to download the Swift app so that you can listen to the YouTube videos at faster than normal speed.
  • The videos do not provide any example of an actual case, anecdote, or even a hypothetical situation that might give some content to the abstract vagaries of “proportionality.”
  • None of the videos mentioned anything about the deletion of Rule 84 and the thirty-six forms that used to follow the rules.
  • An effort is made to reassure viewers that the change in the scope of discovery “is not intended to deprive any party of the evidence needed to prove its claim or defense. The intent is to eliminate excessive and unnecessary discovery.”
  • There is some revisionist history of the evolution of the proportionality amendments. Several speakers attempt to trace those amendments directly to conclusions reached at the 2010 Duke Conference.  But this attempt is belied by the Committee’s 2011 Report to the Chief Justice about the Duke Conference, which specifically stated that there was no need to change the scope of discovery in Rule 26.    
  • Several speakers mentioned three surveys prepared for the Duke Conference, those by the ABA Section of Litigation, the National Employment Lawyers Association, and the Fellows of the America College of Trial Lawyers. Strangely, though, these FJC-produced videos fail to mention the FJC's own studies for the Duke Conference, even though the Committee’s 2011 report to the Chief Justice recognized (note 2, page 3) that the FJC "study design has an important advantage" over the others.  (The FJC studies contained findings that suggested that no changes to discovery were needed.)

January 16, 2016 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Tuesday, January 12, 2016

Ninth Circuit Vacates Order to Seal Records in Chrysler Defect Case

The Ninth Circuit yesterday overturned an order to seal court records in a case involving an alleged automobile safety defect.  The Center for Auto Safety v. Chrysler Group, LLC, No. 15-55084 (9th Cir. Jan. 11, 2016). 

From the summary prepared by the court’s staff:

The panel vacated the district court’s order denying The Center for Auto Safety’s motions to intervene and unseal documents filed to support and oppose a motion for preliminary injunction in a putative class action between Chrysler Group, LLC and certain named plaintiffs, and remanded for further proceedings.

. . .

The panel presumed that the instant motion for preliminary injunction was technically nondispositive.  The panel held that public access to filed motions and their attachments did not depend on whether the motion was technically “dispositive;” but rather, public access turned on whether the motion was more than tangentially related to the merits of the case.  The panel concluded that plaintiffs’ motion for preliminary injunction was more than tangentially related to the merits.  The panel remanded for the district court to consider the documents under the compelling reasons standard.

The case is discussed on the Public Justice blog in a post by Jennifer Bennett, who argued the case for the intervenor, The Center for Auto Safety. 

Hat tip: Paul Bland, Shawn Shaughnessy

January 12, 2016 in Discovery, Recent Decisions, Weblogs | Permalink | Comments (0)

Thursday, January 7, 2016

Now on JOTWELL: Effron on Moore on the 2015 FRCP Amendments

Saturday, January 2, 2016

Chief Justice’s Year-End Report Praises Rules Amendments Sought by Corporate Defendants

          Last year, I complained that the Chief Justice’s Year-End Report for the federal judiciary was irrelevant to real-world concerns.  This year, I cannot complain about Year-End Report's relevance; it focuses mainly on the recently-effective amendments to the Federal Rules of Civil Procedure.  But I can complain, a lot, about the Report’s lack of candor.       

          As been his custom for these year-end reports, the Chief Justice opens with a dull, lengthy historical reference.  Last year it was the Supreme Court's 1935 installation of a pneumatic tube system; this year it’s a dueling book.  The Chief Justice talks about a 22-page booklet published in 1838 setting forth detailed rules on dueling.  The dueling rules, he says, were supposed to “ensure that duels would be conducted fairly—including provisions for resolving disputes through apology and compromise—[and thus] would in fact save lives.”  But alas, the code “had exactly the opposite effect, glorifying and institutionalizing a barbarous practice that led to wanton death.”  Three decades later, “[p]ublic opinion ultimately turned against dueling as a means of settling quarrels.”

          Somehow, this is supposed to relate to the recent amendments to the federal rules.  The implication seems to be that civil discovery today is like dueling, and the new amendments will civilize the barbarism.

          The dueling analogy isn’t clear to me.  If an elaboration of dueling rules led to increased killing, then the elaboration of the federal discovery rules will lead to . . . what?  More lawsuits being killed?  And if “public opinion” ultimately turned against duels, does that mean public opinion should turn even further against plaintiffs who bring civil lawsuits? 

          Setting aside the baffling dueling rulebook analogy, the Report continues with a paean to the process by which the rules are amended.  Federal procedural rules such as the recent amendments, enthuses the Chief Justice, “are developed through meticulous consideration, with input from all facets of the legal community, including judges, lawyers, law professors, and the public at large.”  But the “primary work” of rules amendments, he explains, is done through the Advisory Committee and the Standing Committee.

          The Chief Justice’s characterization of the rules amendment process is meant to imply that the process ensures a national consensus and an impartial solution that will affect all litigants equally.  But these suggested implications are false.

          Here’s the dirty underside of the rules amendment process.  What the Chief Justice doesn’t mention is that he has the sole, unfettered power to appoint the members of the Advisory Committee, the Standing Committee, and the members of all the other federal rules committees.  And he has exercised this power to appoint committee members who are predisposed to favor restrictions on discovery.  For example, at the time these rules amendments were adopted, seven of the eight federal judges on the Standing Committee were appointed by George W. Bush.  As for the Civil Rules Advisory Committee, I wrote recently, “thirteen of the fifteen members of the Advisory Committee had at least one of the following characteristics: they were appointed by a Republican president, clerked for a Republican-appointed Supreme Court justice, work or worked for a defense-oriented, large corporate law firm, and/or are affiliated with the Federalist Society or Lawyers for Civil Justice.”

Continue reading

January 2, 2016 in Discovery, Federal Courts, Federal Rules of Civil Procedure, In the News | Permalink | Comments (2)

Thursday, December 31, 2015

2015 FRCP Amendments Feature Prominently in Chief Justice’s Year-End Report

As if New Year’s Eve wasn’t exciting enough, Chief Justice Roberts has released his 2015 Year-End Report on the Federal Judiciary. He emphasizes the recent amendments to the Federal Rules of Civil Procedure (prefaced by a two-page wind-up about 19th-century dueling practices).


December 31, 2015 in Current Affairs, Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, December 2, 2015

More on the Duke Law Center and the New Discovery Proportionality Rule

To mark the effective date of the latest FRCP amendments, the American Constitution Society's blog posted a short piece by Professor Suja A. Thomas entitled Duke Law and the New Discovery Proportionality Rule.     

The piece describes the controversy surrounding the Duke Center for Judicial Studies’ so-called "Guidelines and Suggested Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality," which we covered earlier here.

December 2, 2015 in Discovery, Federal Rules of Civil Procedure, Weblogs | Permalink | Comments (0)

Tuesday, December 1, 2015

December 1, 2015: FRCP Amendments Now In Effect

The recent batch of amendments to the Federal Rules of Civil Procedure, which the Supreme Court adopted in April, are in effect as of today. Some of our earlier coverage is here and here.


December 1, 2015 in Discovery, Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Thursday, October 29, 2015

Fourth Civil Justice Reform Summit Sponsored by IAALS

The Institute for the Advancement of the American Legal System is sponsoring its Fourth Civil Justice Reform Summit: Creating the Just, Speedy, and Inexpensive Courts of Tomorrow.  The program will be held February 25-26, 2016 at the University of Denver.

The program will include panels on both federal and state rules projects, proportionality, cooperation, and many other topics.  Panelists include federal and state court judges, lawyers, academics, and other researchers.


Hat tip: Linda Sandstrom Simard

October 29, 2015 in Conferences/Symposia, Discovery, Federal Rules of Civil Procedure, State Courts | Permalink | Comments (0)

Thursday, August 13, 2015

Spencer on Rationalizing Cost Allocation in Civil Discovery

A. Benjamin Spencer, University of Virginia School of Law, has posted on SSRN his article, "Rationalizing Cost Allocation in Discovery," forthcoming in the Review of Litigation.


A movement is afoot to revise the longstanding presumption that in civil litigation, the producing party bears the cost of production in response to discovery requests. A proposed amendment to Rule 26(c) - slated to take effect in December 2015 - makes explicit the authority of courts to issue protective orders that shift discovery costs away from producing parties. But this authority is not new; what is new is what may be coming next - an undoing of the producer-pays presumption itself. Thus far, the sentiment to move in this direction has been slightly below the radar, advocated - on constitutional and policy grounds - by pro-business interest groups and advocates before the Advisory Committee on Civil Rules in letters urging them to place this issue on its agenda. 

Given indications that the Advisory Committee will indeed take up the issue of cost shifting in the context of civil discovery, now is an apt time to evaluate the producer-pays rule and the claims of those urging its demise. Specifically, to what extent is the producer-pays rule imposing costs on parties in litigation; are there fairness, policy, or constitutional considerations that warrant a revisiting of the rule; and, ultimately, what would a rational approach to discovery cost allocation look like? This article explores the current landscape of discovery expenses in the federal system and the rules governing their allocation, explores the various purported difficulties with a producer-pays approach, and then builds on these discussions to imagine a rational approach to discovery cost allocation that appropriately balances the interests of litigants on all sides of civil disputes in federal court.


August 13, 2015 in Discovery, Recent Scholarship | Permalink | Comments (0)

Tuesday, August 11, 2015

Duke Center Drafts Its Own “Guidelines” for Proportionality Amendments

The Center for Judicial Studies of Duke Law School has issued a draft of “Guidelines and Suggested Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality.”  The Center has asked for public comments on the draft by August 21, 2015. 

The Center's website states: “The Center for Judicial Studies holds annual bench-bar-academy conferences that identify serious problems in the law, and effect real improvements in laws, rules, and regulations.  The conferences bring together prominent bench leaders, government officials, senior-level lawyers, technical experts, and academics to address emerging legal issues and develop consensus positions that will guide government policy-makers and decision-makers by means of best practices or guidelines.”

The Guidelines on Proportionality result from this process.  Of course, the Guidelines do not have the force of law.  The authors (who are unnamed on the draft) appear to be emulating the method of The Sedona Conference.

Barring action by Congress, the pending amendments to the FRCP will become effective on December 1, 2015.

Financial sponsors of Duke Law School's Center for Judicial Studies in 2014 included Bank of America, ExxonMobil, GE’s Power and Water, Home Depot, King & Spalding, Kirkland & Ellis, Lieff, Cabraser, Heimann & Bernstein, Merck & Co., Monsanto, Pfizer, Inc., Skadden, Arps, Slate, Meagher & Flom, and State Farm Insurance Company. 

Comments on the Guidelines should be sent to the Director of the Center, John Rabiej,  

Hat tip: Valerie Nannery.

August 11, 2015 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Tuesday, June 9, 2015

Thornburg on Schwartz on Litigation and Organizational Introspection

Now available on the Courts Law section of JOTWELL is an essay by Beth Thornburg entitled Discovery and Self-Improvement. Beth reviews Joanna Schwartz’s recent article, Introspection Through Litigation, 90 Notre Dame L. Rev. 1055 (2015).



June 9, 2015 in Discovery, Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, April 15, 2015

Sedona Conference Posts Commentary on Rule 34 and Rule 45

The Sedona Conference has posted a "Commentary on Rule 34 and Rule 45 'Possession, Custody, or Control.'”  The commentary suggests uniform principles as to the meaning of "possession, custody, or control" as used in Federal Rules of Civil Procedure 34 and 45.

The commentary can be downloaded without charge here.

April 15, 2015 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Friday, February 20, 2015

Thomas & Price on the Federal Rulemaking Process and Atypical Cases

Suja Thomas and Dawson Price have posted on SSRN a draft of their article, How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process, which will be published in the Nevada Law Journal. Here’s the abstract:

Commentators have criticized the rulemaking process for decades. Legal scholarship has focused primarily on challenging its constitutionality, questioning whether different actors make better rulemakers, and arguing that some entities have too much power and others have too little. Other commentators have focused on the tools that should be employed by rulemakers when evaluating proposals, focusing on the importance of empirical studies to support rule changes and the role of bias in the formulation of certain rules. In this symposium article, we add to this scholarship by arguing that advisory committees should refrain from proposing and adopting rule amendments that are motivated by atypical cases. Such rules will also affect typical cases, creating bad law for typical cases because the rules were not formulated for such cases. The article describes the thesis of a previous article on how atypical cases make bad law and applies the framework to a current amendment to change the scope of discovery, showing atypical cases make bad rules.



February 20, 2015 in Discovery, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)