Wednesday, April 16, 2014

Report on Last Week's Civil Rules Advisory Committee Meeting

We covered earlier the agenda for the Civil Rules Advisory Committee’s April meeting, which took place in Portland, Oregon last week and was an important step for the recently proposed amendments to the Federal Rules of Civil Procedure. Bloomberg BNA’s U.S. Law Week has this report on the result of the meeting.

The Advisory Committee’s recommendations go next to the Standing Committee on the Rules of Practice and Procedure, which will meet in May.

Hat Tip: Tom Rowe

 

 

April 16, 2014 in Discovery, Federal Rules of Civil Procedure, In the News | Permalink | Comments (0)

Thursday, April 3, 2014

Next Steps in the FRCP Amendment Process

As we’ve been covering, the Judicial Conference Committee on Rules of Practice and Procedure (a.k.a. the Standing Committee) has proposed a significant batch of amendments to the Federal Rules of Civil Procedure. The public comment period on that proposal ended in February, with over 2,300 comments submitted.

The next step in the process is a meeting of the Civil Rules Advisory Committee that will take place on April 10-11 in Portland, Oregon. As covered earlier, the agenda book for that meeting has now been posted on the US Courts website and is available here. At this meeting, the Civil Rules Committee will make recommendations to the Standing Committee, which will meet at the end of May.

The materials in the 580-page agenda book suggest that there could be some important changes to the original package of amendments that was circulated last August. Most significantly, the Duke Conference Subcommittee (named for a conference convened by the Civil Rules Advisory Committee in May 2010) recommends withdrawal of amendments that would have (1) lowered the presumptive numbers of depositions and interrogatories, (2) limited the presumptive number of requests to admit, and (3) reduced the presumptive length of depositions.

Abandoning these proposals is certainly a step in the right direction. Unfortunately, the subcommittees recommend moving forward with other troubling changes, including (1) amendments to the scope of discovery under Rule 26(b), and (2) the abrogation of Rule 84 and the Forms that appear in the Civil Rules Appendix (which are especially significant with regard to pleading standards).

In February, some colleagues and I submitted a joint comment opposing these changes. That comment was submitted by myself, Helen Hershkoff (NYU), Lonny Hoffman (Houston), Alex Reinert (Cardozo), Elizabeth Schneider (Brooklyn), and David Shapiro (Harvard) [Direct link to the pdf available here]. Thereafter, Janet Alexander (Stanford), Judith Resnik (Yale), and Steve Yeazell (UCLA) submitted a letter – on behalf of themselves and 168 other law professors – supporting our comments in opposition to these changes [direct link to the pdf available here]. Numerous other law professors have also submitted critical comments (e.g., here, here, here, here, here, here, here, and here).

I hope these critiques will prompt the various committees to reconsider these problematic proposals. As we stated in the introduction to our joint comment

As in 1993 and in 2000, evidence of system-wide, cost-multiplying abuse does not exist, and the proposed amendments are not designed to address the small subset of problematic cases that appear to be driving the Rule changes. We anticipate that, as with past Rule changes, untargeted amendments will fail to eliminate complaints about the small segment of high-cost litigation that elicits headlines about litigation gone wild; instead they will create unnecessary barriers to relief in meritorious cases, waste judicial resources, and drive up the cost of civil justice. The amendments are unnecessary, unwarranted, and counterproductive.*** In our view, the amendments are likely to spawn confusion and create incentives for wasteful discovery disputes. Even more troubling, by increasing costs and decreasing information flow, the proposed amendments are likely to undermine meaningful access to the courts and to impede enforcement of federal- and state-recognized substantive rights.

 

 

April 3, 2014 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (3)

Tuesday, March 25, 2014

Civil Rules Advisory Committee Publishes Agenda for April Meeting

The Advisory Committee on Civil Rules has published a 580-page Agenda for its upcoming meeting in Portland, Oregon on April 10-11, 2014.

Hat tip: Kevin Clermont.

March 25, 2014 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Friday, February 14, 2014

Coleman on the Proposed Amendments to the FRCP Discovery Rules

Over on the ACS blog is a post by Prof. Brooke Coleman (Seattle) entitled The Real Cost of Litigation Reform: Justice, Not Discovery Costs, Are at Stake, which discusses the current proposals to amend the discovery provisions of the Federal Rules of Civil Procedure. It concludes:

Our litigation system necessarily costs money. But, the purpose of the system is to achieve justice. No doubt, the costs should be contained as much as possible, but that containment should be achieved without sacrificing basic access to our federal system of courts. The proposed discovery rules incentivize producing parties to hold back information that is necessary to get to the truth, and they further burden requesting parties with proving that they need materials before they can even know what that information is. These proposals may make CEOs and general counsels feel more sanguine about the bottom line of their litigation costs, but they should provoke a great amount of dread in the rest of us. Corporations are less likely to be held accountable for their misdeeds if these changes are made. That cost alone renders the current litigation reform proposals unjustified.

 

February 14, 2014 in Discovery, Federal Rules of Civil Procedure, Weblogs | Permalink | Comments (1)

Thursday, February 6, 2014

Final Public Hearing on the Proposed Amendments to the FRCPs (Feb. 7 in Dallas)

Tomorrow, the Judicial Conference Committee on Rules of Practice and Procedure is holding its final public hearing on the recent set of proposed amendments to the Federal Rules of Civil Procedure. Here are some links:

The public comment period closes on February 15, 2014. You can submit comments here.

 

February 6, 2014 in Current Affairs, Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, January 1, 2014

The Plaintiffs' Bar Speaks: Will the Advisory Committee Listen?

Happy new year to everyone!  I've spent some time between shopping, cooking, and eating – will the holidays NEVER END?? – looking at the public comments submitted on the proposed amendments to the Federal Rules of Civil Procedure.

I looked at all the comments filed up to December 19, 2013.  Most of the comments were filed by self-identified plaintiffs' lawyers.  A fair number of commenters did not explicitly identify the type of client they primarily represented.  As 2013 progressed, a smattering of self-identified defendants' attorneys commented.  I counted only three full-time law professors among the commenters and two federal judges (most were opposed to the amendments).  I plan to comment and am presently working on my draft.  I oppose most of the amendments.

The results so far: of 328 non-duplicate filings, 281 commenters, or 86%, were opposed to all the amendments they commented on.  (Most commenters did not address all of the amendments.)  Thirty-one commenters (9%) were opposed to some of the amendments and supported some of the amendments.  These were primarily lawyers who opposed most of the amendments but found one or two amendments to say something nice about, probably for the sake of politeness or credibility.

That leaves 11 commenters (3%) supporting the amendments.  Of those 11, six were self-identified defendants' lawyers, and five did not identify the type of client primarily represented. 

Plaintiffs' lawyers gave example after example of meritorious cases they had handled where the proposed presumptive limits on discovery and the proposed redefinition of the scope of discovery would have stopped them from surviving a summary judgment motion. 

Before the so-called "Duke Conference" that germinated these proposals, the Federal Judicial Center surveyed attorneys who handled cases that terminated in the last quarter of 2008.  The results of private attorney responses to the statement "The outcomes of cases in the federal system are generally fair" were:

 

 Federal Judicial Center Survey, 2009

Private Attorney Responses to the Statement

"The outcomes of cases in the federal system are generally fair"

(frequencies are estimated, not provided by FJC)

 

 

Agree or Strongly Agree

Disagree or Strongly Disagree

"Neither Agree Nor Disagree" or "Can't Say"

Number of Private Attorneys

Private attorneys primarily representing plaintiffs

 

54%

N = 436

 

22%

N = 182

 

24%

N = 192

 

810

Private attorneys primarily representing defendants

 

80%

N = 769

 

4%

N = 40

 

15%

N = 149

 

958

 

            These results were not included in the FJC's final report on the survey.  They are contained in the preliminary report, although not in the detail above, which I estimated from other information the FJC provided. 

Plaintiffs' attorneys, in other words, were more than five times more likely than defendants' attorneys to believe that the outcome of cases in the federal system is substantively not fair.  Now, as evidenced by the public comments, the vast majority of plaintiffs' attorneys oppose the proposed amendments to the FRCP while the vast majority of defendants' attorneys support the amendments.

Please, someone convince me not to give in to cynicism.  We're starting a new semester on Monday.

See you at AALS.

 

January 1, 2014 in Discovery, Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (2)

Sunday, December 1, 2013

Welcome to your new FRCPs 37 & 45

The recent amendments to Federal Rules of Civil Procedure 37 and 45—which the Supreme Court approved last Spring—came into effect today.

 

December 1, 2013 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, November 13, 2013

Hearing on Proposed Amendments to the FRCPs

Last week the Advisory Committee on the Civil Rules held a hearing in Washington, D.C. on the most recent round of proposed amendments to the Federal Rules of Civil Procedure. See below for links to:

The public comment period closes on February 15, 2014.

November 13, 2013 in Current Affairs, Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Tuesday, November 5, 2013

Senate Judiciary Committee Hearing on Proposed Changes to FRCP Discovery Rules

In the midst of a week that’s chock full of civil procedure, we’re just moments away from a hearing of the Senate Judiciary Committee Subcommittee on Bankruptcy and the Courts entitled “Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice?” Here are the details and witness list:

Continue reading

November 5, 2013 in Current Affairs, Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Sunday, November 3, 2013

Benham on the First Amendment in Protective-Order Litigation

Dustin Benham has posted on SSRN his article Dirty Secrets: The First Amendment in Protective-Order Litigation, forthcoming in Cardozo Law Review.

Abstract:

Courts are split on whether the First Amendment limits judges' power to issue protective orders in the pretrial discovery context. Recent events highlight the importance of the issue. During the summer of 2013, a longstanding protective order in a priest-sex-abuse case was finally vacated. The discovery information made public included details about the offenders and information linking a high-ranking church official to efforts to shield church assets from victims’ abuse claims.

Other examples of important information kept from the public abound – pretrial discovery related to dangerous products, industry contamination of a city’s water supply, and domestic spying by the United States government have all been shielded at one time or another by protective orders. This Article contends that the First Amendment should provide significantly more protection for litigant speech in this context.

 

November 3, 2013 in Discovery, Recent Scholarship | Permalink | Comments (0)

Friday, November 1, 2013

A Big Week for Civil Procedure & Federal Courts

There is a lot of action on the civil procedure & federal courts front next week. Mark your calendars (especially if you’ll be in D.C.).

 

November 1, 2013 in Current Affairs, Discovery, Federal Courts, Federal Rules of Civil Procedure, In the News, Supreme Court Cases | Permalink | Comments (0)

Monday, September 30, 2013

State Peer Review Statute Shields Documents from Medical Malpractice Discovery

The Legal Intelligencer reports a ruling by a Pennsylvania state trial judge protecting certain hospital documents from discovery in a medical malpractice case under Pennsylvania's Peer Review Protection Act.  Nurses created the documents, "including a chronology of events and a staff re-education plan," after receiving a report of an alleged injury at the hospital. The judge "found that the documents were created for peer-review purposes, and were therefore confidential" under the Act.

September 30, 2013 in Discovery, Recent Decisions, State Courts | Permalink | Comments (0)

Wednesday, September 4, 2013

Discovery and Lance Armstrong

Jim Vertuno (AP) covers a recent order by a Texas state court judge compelling Lance Armstrong to respond to discovery requests. Here are some excerpts from the report, Judge Orders Armstrong to Answer Doping Questions:

Nebraska-based Acceptance Insurance Holding is seeking the information in its lawsuit to recover $3 million in bonuses it paid Armstrong from 1999 to 2001.***

Travis County District Judge Tim Sulak last week ordered Armstrong to provide documents and written answers to a series of questions by the end of September. The case has been set for trial in April 2014.

The questions seek information dating to 1995 and ask Armstrong to detail who was paid for delivered performance-enhancing drugs, who determined what amount to use and administered them, and who was aware of his drug use. Acceptance specifically asks for information on when and how Armstrong's closest friends, advisers, ex-wife and business partners learned of his doping.

 

September 4, 2013 in Current Affairs, Discovery, In the News, State Courts | Permalink | Comments (0)

Friday, August 16, 2013

Proposed Amendments to the FRCPs: Now Published and Available for Comment

In June 2013, the Judicial Conference Committee on Rules of Practice and Procedure (a.k.a. the Standing Committee) approved a significant set of amendments to the Federal Rules of Civil Procedure for publication and comment. The proposed amendments affect Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and the Appendix of Forms. 

Anyone who is interested may submit written comments, and may also testify at a number of public hearings that are being held in the coming months (Washington, DC, on November 7, 2013; Phoenix, Arizona, on January 9, 2014; and Dallas, Texas, on February 7, 2014).

The public comment period closes on February 15, 2014. Only after this comment period is complete will the Civil Rules Advisory Committee decide whether—and with what further changes—to proceed with these proposals. That decision is likely to occur during the spring of 2014, with the Supreme Court ultimately signing off in the spring of 2015 (by May 1, 2015 at the latest). Absent intervention by Congress, any changes would go into effect on December 1, 2015. 

More details about the comment and hearing process are available here and here. The draft of the proposed amendments are available here. (Note that these documents also include proposed amendments to the Bankruptcy Rules, which are subject to the same comment period but with a different set of public hearings.)

--A

August 16, 2013 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Saturday, May 4, 2013

Company Cannot Assert Attorney-Client Privilege Against Its Director, Delaware Court Holds

Plaintiff is a director of the defendant Company, a Delaware corporation, and he owns an entity that was the Company's largest shareholder. The remaining directors of the Company are also defendants. The Board of Directors established a Special Committee to explore strategic alternatives for the Company. Plaintiff was a member of the Special Committee. Later, the entity owned by Plaintiff announced it would nominate candidates for election at the Company's annual meeting. The defendants then secretly "sprang into action" and 11 days later, Company counsel notified Plaintiff by email that a special Board meeting would occur the next day to approve a recapitalization in which an entity controlled by one of the defendants would emerge as the largest shareholder of the Company. At meetings of the Special Committee and the Board of Directors the next day, the recapitalization was approved over Plaintiff's negative vote. The day after that, the Company announced the recapitalization and also announced that it was postponing the annual meeting and deferring the record date. That same day, Plaintiff filed suit challenging the recapitalization and the postponement of the annual meeting and record date.

Plaintiff subpoenaed counsel to the Company and to the Special Committee for documents relating to the planning and scheduling of the special meetings and the structuring of the recapitalization. Defendants asserted the attorney-client privilege and work product protection.

The court granted Plaintiff's motion to compel, holding that until the day the Board voted to approve the recapitalization, the Company could not assert either privilege against Plaintiff, who was a director of the Company. After the Board voted to recapitalize, however, sufficient adversity existed between Plaintiff and the Company such that Plaintiff could no longer have a reasonable expectation that he was a client of the Board's counsel. Kalisman v. Friedman, 2013 Del. Ch. LEXIS 100 (Delaware Court of Chancery, April 17, 2013).

PM

May 4, 2013 in Discovery, Recent Decisions, State Courts | Permalink | Comments (0)

Tuesday, April 16, 2013

Miller on the Deformation of Federal Civil Procedure

Now available online is an article by Arthur Miller (NYU) entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. L. Rev. 286 (2013). Here’s the abstract:

When the Federal Rules of Civil Procedure were promulgated in 1938, they reflected a policy of citizen access for civil disputes and sought to promote their resolution on the merits rather than on the basis of the technicalities that characterized earlier procedural systems. The federal courts applied that philosophy of procedure for many years. However, the last quarter century has seen a dramatic contrary shift in the way the federal courts, especially the U.S. Supreme Court, have interpreted and applied the Federal Rules and other procedural matters. This shift has produced the increasingly early procedural disposition of cases prior to trial. Indeed, civil trials, especially jury trials, are very few and far between today.

The author examines the significant manifestations of this dramatic change, and traces the shift in judicial attitude back to the three pro-summary judgment decisions by the Supreme Court in 1986. Furthermore, he goes on to discuss the judicial gatekeeping that has emerged regarding (1) expert testimony, (2) the constriction of class action certification, (3) the enforcement of arbitration clauses in an extraordinary array of contracts (many adhesive in character), (4) the Court’s abandonment of notice pleading in favor of plausibility pleading (which, in effect, is a return to fact pleading), (5) the intimations of a potential narrowing of the reach of in personam jurisdiction, and (6) a number of limitations on pretrial discovery that have resulted from Rule amendments during the last twenty-five years.

All of these changes restrict the ability of plaintiffs to reach a determination of their claims’ merits, which has resulted in a narrowing effect on citizen access to a meaningful day in court. Beyond that, these restrictive procedural developments work against the effectiveness of private litigation to enforce various public policies involving such matters as civil rights, antitrust, employment discrimination, and securities regulation.

Concerns about abusive and frivolous litigation, threats of extortionate settlements, and the high cost of today’s large-scale lawsuits motivate these deviations from the original philosophy of the Federal Rules, but these concerns fail to take proper account of other systemic values. The author argues that these assertions are speculative and not empirically justified, are overstated, and simply reflect the self-interest of various groups that seek to terminate claims asserted against them as early as possible to avoid both discovery and a trial. Indeed, they simply may reflect a strong pro-business and pro-government orientation of today’s federal judiciary. The author cautions that some restoration of the earlier underlying philosophy of the Federal Rules is necessary if we are to preserve the procedural principles that should underlie our civil justice system and maintain the viability of private litigation as an adjunct to government regulation for the enforcement of important societal policies and values.

--A 

April 16, 2013 in Class Actions, Discovery, Federal Rules of Civil Procedure, Recent Scholarship, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Monday, November 26, 2012

Meier on the Summary Judgment Standard

Professor Luke Meier of Baylor University has posted on SSRN his new article, "Probability, Confidence, and the 'Reasonable Jury' Standard."

Abstract:

The modern summary judgment standard requires that a judge consider how a "reasonable jury" would resolve a particular dispute. By creating the impression that a judge's analysis at summary judgment replicates that of a jury at trial, the "reasonable jury" standard masks a component of the judge's summary judgment analysis. To appreciate this concept, it is necessary to distinguish between the concepts of probability and confidence. Whereas a jury primarily -- if not exclusively -- engages in a probability analysis, a judge performs both a probability and confidence analysis. This article discusses the dual nature of a judge's summary judgment inquiry through a reconsideration of Professor Tribe's "blue bus" hypothetical. In addition, this article demonstrates how the "reasonable jury" standard makes it difficult to identify the confidence concept as a component of federal procedure.

PM

November 26, 2012 in Discovery, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Monday, August 13, 2012

Discovery Sanctions Order in Apple Patent Litigation

U.S. District Judge Leonard Davis of the Eastern District of Texas imposed sanctions last week on Apple for halting a deposition of one of its employees, Mr. Allié, in a patent dispute. Might be of use for civil procedure professors looking for a current example for teaching purposes. Below is the portion of the order setting forth the sanctions:

Continue reading

August 13, 2012 in Discovery, Recent Decisions | Permalink | Comments (0)

Monday, August 6, 2012

Judge Sanctions Greenberg Traurig and TD Bank for Discovery Abuses

The ABA Journal online reports:

Saying that a well-known law firm and its client bank had often handled a major case "in an Inspector Clouseau-like fashion,” a federal judge in Miami has sanctioned both for what she called a “pattern of discovery abuses before, during, and after trial.”

U.S. District Judge Marcia Cooke declined, however, to sanction individually any of the lawyers at Greenberg Traurig whose “handling of this case left much to be desired.” That's because she found they didn't act willfully or in bad faith as they helped client TD Bank defend against a civil damages suit brought by some of the investors fleeced by then-attorney Scott Rothstein, reports Bloomberg. Over 200 attorneys worked on the matter at Greenberg Traurig.

Cooke did find that TD Bank, against whom Texas-based Coquina Investors won a $67 million verdict in January for aiding and abetting Rothstein's fraud, "willfully concealed relevant evidence from its trial counsel.”

In addition to requiring both the bank and the law firm to pay the investors' legal fees for pursuing the sanctions motion, the judge also made a finding that TD Bank "had actual knowledge of Rothstein’s fraud.” While the finding was made after the verdict, it would benefit the investors in a potential appeal.

The case is Coquina Investments v. Rothstein, No. 10-60786-Civ-COOKE/BANDSTRA (S. D. Fla. Aug. 3, 2012).

PM

August 6, 2012 in Discovery, Recent Decisions | Permalink | Comments (0)

Friday, June 8, 2012

Law Student Research & Writing Competition on E-Discovery

Details are available here. From the announcement:

The DISH® “Best in Class” eDiscovery Legal Research and Writing Competition encourages law students to develop a thorough understanding of the evolution and practice of Information Governance and Discovery in civil litigation.  The competition is the only one of its kind designed to challenge law students to explore the evolving issues of document management, electronically stored information, and ever-expanding technology—along with their application to the law.

The 2012 competition asks students to address the following topic: Under what standard should a court subject an employee's non-business personal computing activities (e.g., social media, documents stored on a personal computer, and/or personal email accounts) to civil discovery involving her or his employer?

And:

The first-place selection will receive a $2,500 cash award along with an invitation to present his/her paper on a webinar hosted by Redgrave LLP. Two runners-up will also be selected and will each receive a $1,000 cash award.

The deadline for submissions is October 13, 2012.

--A

June 8, 2012 in Discovery, Web/Tech | Permalink | Comments (0)