Saturday, February 28, 2015

House Committee Hearing on CAFA Dominated by US Chamber of Commerce

I wanted to post a quick blurb about my testimony yesterday before the Subcommittee on the Constitution and Civil Justice of the House Judiciary Committee in the hearing on The State of Class Actions Ten Years After the Class Action Fairness Act.

Here is the Prepared Statement I submitted 48 hours in advance of the hearing.

Not surprisingly given Republicans' control of the House, of the four witnesses testifying at the hearing, I was the only one offered by the Democrats.  The others were representing the US Chamber, DRI-the Voice of the Defense Bar, and Skadden Arps.

Continuing the proud tradition of "tort reformers" in spinning corporations' huge legal victories as tragic defeats, one would have never known that Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and American Express v. Italian Colors (among many other corporate victories in the Supreme Court, the Advisory Committee, and state legislatures) had ever happened.  Instead, listening to the Republican-sponsored witnesses and members of the Committee and Subcommittee, it seemed instead that democracy itself, and even the world economy, were threatened by legions of liberal federal judges granting class certifications in cases in which no class members had been injured.  (Yes, the new urban myth of corporate interests is the so-called "no injury" class.)

As a former litigator, it was agony sitting there and not being able to object ("Mischaracterizes the evidence!"  "Assumes facts not in evidence!" "Irrelevant!") to some of the things coming out of people's mouths.  

It was also depressing to calculate how much I would have earned at the going hourly rate of an attorney with my background and experience in an urban market IF ANYONE HAD BEEN PAYING ME -- which of course, no one was.  (My dear law school, St. Thomas, reimbursed my measly travel expenses.)

Somehow, I doubt that the other three witnesses were appearing pro bono.

But someone has to stand up for rights of injured, cheated, and discriminated-against Americans and the plaintiffs' lawyers who represent them.  I am honored to have tried my best to do so.

 

 

 

 

 

February 28, 2015 in Class Actions, Current Affairs, Federal Rules of Civil Procedure, Mass Torts | 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)

Tuesday, February 10, 2015

Second Circuit Opinion on Class Certification & SCOTUS’s Comcast Decision

Today the U.S. Court of Appeals for the Second Circuit issued its decision in Roach v. T.L. Cannon Corp. The opinion begins:

“This appeal presents the question of whether the Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), overruled the law of this Circuit that class certification pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure cannot be denied merely because damages have to be ascertained on an individual basis. The United States District Court for the Northern District of New York (McAvoy, J.) concluded that Comcast permits certification under Rule 23(b)(3) only when damages are measurable on a classwide basis, and denied Plaintiffs-Appellants’ motion for class certification.

“We hold that Comcast does not mandate that certification pursuant to Rule 23(b)(3) requires a finding that damages are capable of measurement on a classwide basis.”

And from later in the opinion:

“The Supreme Court did not foreclose the possibility of class certification under Rule 23(b)(3) in cases involving individualized damages calculations. Our reading of Comcast is consistent with the Supreme Court’s statement in Comcast that its decision turned upon 'the straightforward application of class-certification principles.' 133 S. Ct. at 1433. Our reading is also consistent with the interpretation of those Circuits that have had the opportunity to apply Comcast.”

 

H/T: Perry Cooper 

 

 

 

February 10, 2015 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Alabama Same-Sex Marriage Litigation: Important Rulings & Documents

As we’ve been covering, there has been significant activity here in Alabama in the wake of the U.S. Supreme Court’s refusal to stay a federal judge’s January ruling that Alabama’s prohibition on same-sex marriage is unconstitutional. This post is simply to provide a repository for some of the important filings, decisions, and other documents. The links below will open the actual documents themselves, not simply links to other websites (which can sometimes succumb to “link rot”). I plan to update this page with new documents as the litigation proceeds.

 

 

February 10, 2015 in Current Affairs, Federal Courts, Federal Rules of Civil Procedure, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Wednesday, February 4, 2015

Missing Pro Se Litigant With SCOTUS-worthy Rule 4(m) Issue Resurfaces

We covered earlier the Supreme Court’s grant of certiorari in Chen v. Mayor and City Council of Baltimore (No. 13-10400), which promised to resolve a conflict in the circuits over extensions of time to serve process under Rule 4(m).  The petitioner was proceeding pro se, and on January 9 the Court dismissed the case with this order:

Petitioner has not filed a brief on the merits within 45 days of the order granting the writ of certiorari, as required by Rule 25.1. Petitioner has neither requested an extension of time nor responded to correspondence directed to the mailing address provided under Rule 34.1(f). Additional efforts to contact petitioner have been unsuccessful. The writ of certiorari is accordingly dismissed.

But the story doesn’t end there. Yesterday Mr. Chen—represented by Paul Clement—filed a petition for rehearing asking for his case to be reinstated. From today’s Wall Street Journal story:

Mr. Clement’s eight-page submission said Mr. Chen left his New York residence last fall to make what was intended to be a short business trip to California. But while there, Mr. Chen suffered a “slip-and-fall injury” that postponed his return for more than two months.

The court filing said Mr. Chen arrived back in New York on Jan. 22 and was “surprised and dismayed” to learn the Supreme Court had accepted, and subsequently dismissed, his case.

Stay tuned.

 

 

 

 

 

February 4, 2015 in Current Affairs, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, February 3, 2015

Dart Cherokee and Class-Certification Appeals under Rule 23(f)

We covered earlier the Supreme Court’s decision in Dart Cherokee Basin Operating Co. v. Owens, a case where cert. was granted to resolve what had to be contained in a notice of removal, only to have a 5-4 fight erupt over questions of Supreme Court jurisdiction and the proper standard of review.

Scott Gant and Christopher Hayes have now posted a piece entitled 'Dart' and Class Certification Order Jurisdiction, which argues the Dart Cherokee “also resolves uncertainty about whether the Supreme Court has jurisdiction to review a district court’s interlocutory order granting or denying class certification when the court of appeals has declined to review the order.”

 

February 3, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, January 29, 2015

Some Recent Papers on Discovery

As the Supreme Court ponders the proposed FRCP discovery amendments (if approved and not vetoed by Congress, they’ll be coming soon to a federal court near you this December), a few recent postings to SSRN are worthy of note…

Steve Burbank has posted Proportionality and the Social Benefits of Discovery: Out of Sight and Out of Mind?, which will be published in the Review of Litigation. Here’s the abstract:

In this short essay, based on remarks delivered at the 2015 meeting of the AALS Section of Litigation, I use a recent paper by Gelbach and Kobayashi to highlight the risk that, in assessing the proportionality of proposed discovery under the 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure, federal judges will privilege costs over benefits, and private over public interests. The risk arises from the temptation to focus on (1) the interests of those who are present to the detriment of the interests of those who are absent (“the availability heuristic”), and (2) variables that appear quantifiable over those that do not (“the evaluability hypothesis”). I argue that the social benefits of discovery are not mere abstractions or the stuff of formal models. They are the intended fruits of conscious legislative policy. If proportionality is not to become a deregulatory tool in cases in which federal regulatory policy is implicated, judges must resist the temptation to give short shrift to those elements of the analysis that, because they are out of sight, are also out of mind, or are difficult to quantify -- in particular, social benefits.

And here is the abstract for the aforementioned article by Jonah Gelbach & Bruce Kobayashi, The Law and Economics of Proportionality in Discovery:

This paper analyzes the proportionality standard in discovery. Many believe the Advisory Committee's renewed emphasis on this standard has the potential to infuse litigation practice with considerably more attention to questions related to the costs and benefits of discovery. We discuss the history and rationale of proportionality's inclusion in Rule 26, adopting an analytical framework that focuses on how costs and benefits can diverge in litigation generally, and discovery in particular. Finally, we use this framework to understand the mechanics and challenges involved in deploying the six factors included in the proportionality standard. Throughout, we emphasize that the proportionality standard requires both difficult-to-answer positive questions and unavoidably normative judgments.

 

 

 

 

January 29, 2015 in Discovery, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Saturday, January 24, 2015

SCOTUS Decision in Gelboim v. Bank of America: Appellate Jurisdiction & MDL Proceedings

Back at the end of last Term we covered the Supreme Court’s grant of certiorari in Gelboim v. Bank of America (No. 13-1174). This week the Court issued a unanimous opinion in Gelboim, authored by Justice Ginsburg. Here’s how she teed things up:

An unsuccessful litigant in a federal district court may take an appeal, as a matter of right, from a “final decisio[n] of the district cour[t].” 28 U.S.C. §1291. The question here presented: Is the right to appeal secured by §1291 affected when a case is consolidated for pretrial proceedings in multidistrict litigation (or MDL) authorized by 28 U.S.C. §1407?

The Court’s answer: No. Plaintiffs whose action was consolidated for pretrial MDL proceedings could still appeal the dismissal of their action, even though other cases in the MDL remained pending. It was not necessary for such plaintiffs to obtain authorization to appeal via Federal Rule of Civil Procedure 54(b).

In footnote 4, though, the Court reserved judgment on whether it would reach the same conclusion when cases were “combined in an all-purpose consolidation,” as opposed to an MDL consolidation for pretrial purposes only. (Not as glamorous as footnote 4 of Carolene Products, but worth keeping an eye on.)

For more, Howard Wasserman has an analysis of the opinion over at SCOTUSblog.

 

January 24, 2015 in Federal Courts, Federal Rules of Civil Procedure, MDLs, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, January 20, 2015

SCOTUS Decision in Teva Pharmaceuticals v. Sandoz: FRCP 52, Clear Error, and Patent Claim Construction

Today, the Supreme Court issued a 7-2 opinion in Teva Pharmaceuticals v. Sandoz, which addresses the role of Rule 52(a)’s “clear error” standard of review in the context of patent claim construction. Justice Breyer writes for the majority and Justice Thomas, joined by Justice Alito, writes a dissenting opinion. In addition to the link above, here is the .pdf of the opinion that was released today: Download Teva v. Sandoz

And here is the short answer, from the majority opinion:

Federal Rule of Civil Procedure 52(a)(6) states that a court of appeals “must not . . . set aside” a district court’s “[f]indings of fact” unless they are “clearly erroneous.” In our view, this rule and the standard it sets forth must apply when a court of appeals reviews a district court’s resolution of subsidiary factual matters made in the course of its construction of a patent claim.

Both opinions, however, confront the notoriously thorny distinction between fact and law, and there is an interesting discussion of whether facts relevant to claim construction are analogous to facts relevant to quintessentially “legal” endeavors like statutory interpretation. As for how this all unfolds in the patent context, just read parts II.D and III of the court’s opinion (which features one of my new favorite words: kilodalton). 

The dissenting opinion begins: 

Because Rule 52(a)(6) provides for clear error review only of “findings of fact” and “does not apply to conclusions of law,” Pullman-Standard v. Swint, 456 U. S. 273, 287 (1982), the question here is whether claim construction involves findings of fact. Because it does not, Rule 52(a)(6) does not apply, and the Court of Appeals properly applied a de novo standard of review. (footnote omitted).

Justice Thomas’s dissent also raises an interesting wrinkle about the extent to which the majority’s decision hinges on “stipulations” by the parties that may narrow its impact. As he writes in a footnote:

The majority argues that we are bound by petitioners’ phrasing of the question presented and by respondents’ concession at oral argument that claim construction “will sometimes require subsidiary factfinding.” Ante, at 10–11. But the parties’ stipulations that claim construction involves subsidiary factual determinations, with which I do not quarrel, do not settle the question whether those determinations are “findings of fact” within the meaning of Rule 52(a)(6). And to the extent that the majority premises its holding on what it sees as stipulations that these determinations are “findings of fact” for purposes of Rule 52(a)(6), then its holding applies only to the present dispute, and other parties remain free to contest this premise in the future.

 

January 20, 2015 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, November 17, 2014

Some thoughts on Johnson v. City of Shelby: Does it help make sense of Twombly & Iqbal?

We covered earlier the Supreme Court’s per curiam decision in Johnson v. City of Shelby summarily reversing the Fifth Circuit. It’s a short opinion—just two and a half pages—but it has some important things to say about pleading standards. Here are a few quick thoughts:

The primary issue in the case is whether the district court properly rejected the plaintiffs’ due process claim for failing to invoke 42 U.S.C. § 1983 explicitly in their complaint. The Fifth Circuit had affirmed based on a misguided line of lower court decisions finding complaints to be “fatally defective” for failing to cite § 1983. The Supreme Court’s Johnson opinion makes clear that this line of cases is wrong—a plaintiff’s failure to cite § 1983 in his or her complaint is not fatal. From page 1 of the slip opinion: “Federal pleading rules call for ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.”

Nonetheless, the Court states that—on remand—the Johnson plaintiffs “should be accorded an opportunity to add to their complaint a citation to § 1983.” [Slip Op., p.3] This is admittedly somewhat puzzling. Why would there be any need to amend the complaint to include something that is not required? One possible explanation is that the plaintiffs had asked the district court for leave to amend the complaint, but the court refused and the Fifth Circuit affirmed that refusal. It is valuable, therefore, for the Supreme Court to reemphasize—with its citation to Rule 15(a)(2)—the Federal Rules’ instruction that “[t]he court should freely give leave when justice so requires.” [See  Slip Op., p.3] In any event, the Supreme Court simply insists that the plaintiffs have an opportunity to add a citation to § 1983 to their complaint (as they requested). Given the Supreme Court’s conclusion that no such citation is required, it would be entirely proper for the Johnson plaintiffs and the lower court to agree that no amendment to the complaint is necessary in order for the plaintiffs’ claims to be resolved on the merits.

The most intriguing part of the Supreme Court’s Johnson opinion, however, may be the paragraph discussing Twombly and Iqbal. The Court initially notes that Twombly and Iqbal do not resolve whether the plaintiffs were required to cite § 1983 in the complaint, because Twombly and Iqbal “concern the factual alle­gations a complaint must contain to survive a motion to dismiss.” [Slip Op., p.2 (court’s emphasis)] But the Court goes on to say that the complaint in Johnson was “not deficient” under Twombly and Iqbal because the plaintiffs “stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim. See Fed. Rules Civ. Proc. 8(a)(2) and (3), (d)(1), (e).” [Slip Op., pp.2-3]

Can a plaintiff really comply with Twombly and Iqbal merely by “stat[ing] simply, concisely, and directly events that, they alleged, entitled them to damages from the city”? Yes. Keep in mind: even Iqbal recognized that non-conclusory allegations must be accepted as true at the pleadings phase, without any inquiry into whether the truth of those allegations is plausibly suggested by other allegations. One of many frustrating aspects of the Iqbal majority opinion was that it failed to explain what made the crucial allegations in the Iqbal complaint too conclusory to be accepted as true. But I’ve argued elsewhere that one way to make sense of Twombly and Iqbal—in light of the text and structure of the Federal Rules and Supreme Court precedent that remains good law—is through a transactional approach to pleading. That is, an allegation is conclusory when it fails to identify adequately the acts or events that entitle the plaintiff to relief from the defendant. It is only when an allegation obscures the underlying real-world events with mere legal conclusions that it should be disregarded as conclusory under Iqbal.

On this point, it’s particularly interesting that the plaintiffs’ claim in Johnson was “that they were fired by the city’s board of aldermen, not for deficient performance, but because they brought to light criminal activities of one of the aldermen.” [Slip Op., p. 1] Such a claim—like the claim at issue in Iqbal—hinges on the defendants’ intent. Properly understood, Iqbal does not hold that an allegation is “conclusory” simply because it alleges that a defendant acted with a certain state of mind. Rather, such an allegation should be accepted as true—including its description of the defendant’s intent—as long as it provides a basic identification of the liability-generating events or transactions. The Supreme Court’s reasoning in Johnson is consistent with this approach, and confirms that Twombly and Iqbal need not be read to impose heightened burdens on plaintiffs at the pleadings phase.

All in all, Johnson v. City of Shelby is a short-but-sweet per curiam opinion that not only gets the right result on the primary issue presented, but also reflects a more sensible approach to pleading generally. Lower courts should take note.

 

 

November 17, 2014 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (3)

Monday, November 10, 2014

SCOTUS Summary Reversal on Pleading Standards: Johnson v. City of Shelby

We’ve been watching Johnson v. City of Shelby, a case raising some important questions on pleading standards that the Supreme Court relisted several times. Today the Court issued a per curiam decision summarily reversing the Fifth Circuit. It appears following today’s order list (beginning at page 11 of the .pdf file). Here are some highlights:

Plaintiffs below, petitioners here, worked as police officers for the city of Shelby, Mississippi. They allege that they were fired by the city’s board of aldermen, not for deficient performance, but because they brought to light criminal activities of one of the aldermen. Charging violations of their Fourteenth Amendment due process rights, they sought compensatory relief from the city. Summary judgment was entered against them in the District Court, and affirmed on appeal, for failure to invoke 42 U. S. C. §1983 in their complaint.

We summarily reverse. Federal pleading rules call for “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted. See Advisory Committee Report of October 1955, reprinted in 12A C. Wright, A. Miller, M. Kane, R. Marcus, and A. Steinman, Federal Practice and Procedure, p. 644 (2014 ed.) (Federal Rules of Civil Procedure “are designed to discourage battles over mere form of statement”); 5 C. Wright & A. Miller, §1215, p. 172 (3d ed. 2002) (Rule 8(a)(2) “indicates that a basic objective of the rules is to avoid civil cases turning on technicalities”).

Our decisions in Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007), and Ashcroft v. Iqbal, 556 U. S. 662 (2009), are not in point, for they concern the factual allegations a complaint must contain to survive a motion to dismiss. A plaintiff, they instruct, must plead facts sufficient to show that her claim has substantive plausibility. Petitioners’ complaint was not deficient in that regard. Petitioners stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim. See Fed. Rules Civ. Proc. 8(a)(2) and (3), (d)(1), (e). For clarification and to ward off further insistence on a punctiliously stated “theory of the pleadings,” petitioners, on remand, should be accorded an opportunity to add to their complaint a citation to §1983. See 5 Wright & Miller, supra, §1219, at 277–278 (“The federal rules effectively abolish the restrictive theory of the pleadings doctrine, making it clear that it is unnecessary to set out a legal theory for the plaintiff’s claim for relief.” (footnotes omitted)); Fed. Rules Civ. Proc. 15(a)(2) (“The court should freely give leave [to amend a pleading] when justice so requires.”).

 

November 10, 2014 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Friday, November 7, 2014

SCOTUS Cert. Grant of Interest: Discretion to Extend Time for Service of Process under Rule 4(m)

The Supreme Court granted certiorari today in Chen v. Mayor and City Council of Baltimore (No. 13-10400), a case in which the petitioner was proceeding pro se. The question presented is:

Whether, under Federal Rule of Civil Procedure 4(m), a district court has discretion to extend the time for service of process absent a showing of good cause, as the Second, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether the  district court lacks such discretion, as the Fourth Circuit has held?

You can find links to the cert. stage briefing (as well as the merits briefs as they come in) at SCOTUSblog’s Chen case file.

 

 

November 7, 2014 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (1)

Tuesday, October 14, 2014

The Advisory Committee's Gargantuan New Agenda

Far from resting on its laurels after pushing through the latest round of defense-oriented amendments to the FRCP, the Advisory Committee on Civil Rules continues its assault.  This time, among many other things, it's tackling class actions – as if the Supreme Court wasn't already doing a pretty good job of eviscerating class actions by itself.

The 588-page agenda book for the Committee's meeting in Washington, D.C. on October 30-31, 2014 is on the U.S. Courts website here.

October 14, 2014 in Class Actions, Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Thursday, October 9, 2014

Interesting Cert. Petition on Pleading (Just Relisted)

John Elwood's most recent SCOTUSblog Relist Watch identifies Johnson v. City of Shelby, which presents these questions:

1. Is a federal complaint subject to dismissal when it fails to cite the statute authorizing the cause of action?

2. Do the lower federal courts have authority to create pleading requirements for complaints when those requirements are not contained in the Federal Rules of Civil Procedure?

3. Should a federal complaint be dismissed when it alleges the elements of a 42 U.S.C. § 1983 claim, but does not cite 42 U.S.C. § 1983?

It's been re-calendared for this Friday's conference (10/10). Here's the Fifth Circuit's decision below.

Stay tuned.

(Hat Tip: Shaun Shaughnessy)

 

 

October 9, 2014 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (2)

Tuesday, September 16, 2014

Judicial Conference Passes Proposed FRCP Amendments

The National Law Journal reports that the Judicial Conference passed the proposed amendments to the Federal Rules of Civil Procedure today.  The amendments next to go the Supreme Court for approval.

September 16, 2014 in Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Friday, September 12, 2014

Proposed Rule 37(e): Failure to Preserve Electronically Stored Information

I mentioned yesterday that the proposed FRCP amendments include all three top priorities of the defense-oriented "Lawyers for Civil Justice," as stated on its web site:

LCJ’s . . . current federal rulemaking agenda is focused on . . . FRCP amendments related to our three pillars of discovery reform: (1) a national and uniform spoliation sanction approach; (2) a fair and practical revised scope of discovery; and (3) development of incentive-based “requester pays” default rules.

The proposed amendment to Rule 37(e) covers the first of the items on the LCJ's wish list.

The current version of Rule 37(e), adopted in 2006, provides a narrow safe harbor that prohibits sanctions for the loss of information due to "the routine, good-faith operation of an electronic information system," such as document-destruction policies adopted without regard to particular litigation.  The recently-revised proposed amendment to Rule 37(e) omits the existing explicit safe harbor and overhauls the earlier published-for-comment version of the proposal:

Rule 37.  Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

* * *

(e) Failure to Preserve Provide Electronically Stored Information.  Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.  If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court may:

(1) upon finding prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable

to the party; or

(C) dismiss the action or enter a default judgment.

Notice how many obstacles a party seeking ESI would have to surmount to obtain relief for the failure of the responding party to preserve ESI.  First, the court will have to find that the duty to preserve was triggered before the information was lost.  Second, the court will have to find that the responding party failed to take reasonable steps to preserve the ESI.  Third, the court will have to find that the lost ESI "cannot be restored or replaced through additional discovery."  (By definition, the ESI is lost, so it is unclear to me how the seeking party would know with certainty that "additional discovery" could restore or replace the missing information.)

At that point, the court will have found that (1) the responding party failed to take reasonable steps to preserve (2) irreplaceable ESI (3) after a duty to preserve had been triggered.  Still, the court is not required to impose any curative measures or sanctions on the responding party without additional findings.  The court "may" take one of two paths:

  • if it makes the additional finding that the seeking party was "prejudiced" from the loss of the ESI, the court may order "measures no greater than necessary to cure the prejudice," OR
  • if it makes the additional finding that the responding party "acted with the intent to deprive another party of the information’s use in the litigation," it may order more serious sanctions, such as an adverse inference jury instruction or default judgment.

In the draft of Rule 37(e) that was published for comment in August 2013, the drafters allowed the court to order both "curative measures" and "sanctions."  In the draft that was approved, it appears that the court may order either curative measures or sanctions. 

As to sanctions, the LCJ, like many others, advocated "a national and uniform spoliation sanction approach" in light of differing mens rea requirements adopted by different courts, including negligence, gross negligence, and willfulness.  A uniform standard would indeed be useful, but a specific "intent to deprive another party of the information's use in the litigation" is the toughest standard to prove that the Advisory Committee could have adopted. 

 

September 12, 2014 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Thursday, September 11, 2014

"Corporate and Defense Perspective" Prevails in the Proposed Step Toward Cost-Shifting in Rule 26(c)

With the proposed amendment to Rule 26(c), the Advisory Committee is taking another step down the road to perhaps the biggest prize for large institutional defendants: shifting to plaintiffs the defendants' cost of responding to discovery.  Currently, the default rule is that each party bears its own costs of responding to the other side's discovery requests. 

The newly proposed rule will add "the allocation of expenses" as a provision that a court may include in a protective order.  Make no mistake, though: the euphemism "allocation of expenses" means "shifting of expenses to the requesting party," who will normally be the plaintiff.

The proposed amendment is:

26(c)  Protective Orders.

(1)  In General.  * * * The court may, for good cause, issue an order to protect a party or person from            annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

* * * * *

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

* * * * *

The accompanying proposed Committee Note is:

Rule 26(c)(1)(B) is amended to include an express recognition of protective orders that allocate expenses for disclosure or discovery. Authority to enter such orders is included in the present rule, and courts already exercise this authority. Explicit recognition will forestall the temptation some parties may feel to contest this authority. Recognizing the authority does not imply that cost-shifting should become a common practice. Courts and parties should continue to assume that a responding party ordinarily bears the costs of responding.

The requester-pays idea has been tirelessly promoted for years by the Federalist Society and its ally, "Lawyers for Civil Justice" (LCJ) (as to LCJ's name, think "War is Peace, Freedom is Slavery, Ignorance is Strength").  It is no secret that the arch-conservative Federalist Society has had a key role in reshaping the federal judiciary over the past thirty years. 

In their book, The Federalist Society: How Conservatives Took the Law Back from Liberals (2013), Michael Avery and Danielle McLaughlin assert, "Every single federal judge appointed by President H.W. Bush or President George W. Bush was either a member or approved by members of the [Federalist] Society," including their most prominent appointees, Supreme Court Justices Roberts, Alito, Scalia, and Thomas. And as Michael L. Rustad and Thomas H. Koenig explain in their article, Taming the Tort Monster: The American Civil Justice System As A Battleground of Social Theory, 68 Brook. L. Rev. 1, 78 (2002):

Although The Federalist Society professes to take no official stand on controversial legal policy issues, the organization coordinates its activities with other conservative groups in favor of tort reform.  The Lawyers for Civil Justice, a pro-tort reform alliance, hosted a meeting for industry and defense bar leaders including the “United States Chamber of Commerce, Federalist Society, Defense Research Institute, [and the] American Tort Reform Association” to “improve the coordination among several groups already addressing . . . issues” such as tort reform.

Chief Justice Roberts appoints the members and the chairpersons of the Advisory Committee, the Standing Committee, and other federal rules committees.  As a result, the Federalist Society and LCJ have taken control of the federal rulemaking process.    

At present, the five chairpersons of the Rules Advisory Committees (Civil Procedure, Evidence, Appellate, Bankruptcy, and Criminal) and the Chair of the Standing Committee are:

Chairpersons of Federal Advisory Committees on Rules of Practice and Procedure

 

Federal

judge

type

Chair of

this

Committee

Appointed

by this

president

Known

affiliation

with Federalist

Society or LCJ?

Supreme Court clerkship

Jeffrey S. Sutton

Appeals

Standing

G.W. Bush

Yes

Scalia

Steven M. Colloton

Appeals

Appellate

G.W. Bush

Yes

 

Eugene R. Wedoff

Bankruptcy

Bankruptcy

N/A

No

 

David G. Campbell

District

Civil

G.W. Bush

Yes

Rehnquist

Reena Raggi

Appeals

Criminal

G.W. Bush

Yes

 

Sidney A. Fitzwater

District

Evidence

Reagan

No

 

 

Thus, at least four of the six chairpersons of the federal rules advisory committees and the Standing Committee have some connection with the Federalist Society and/or LCJ.  A fifth, Judge Fitzwater, has been described as one of the country's "most conservative judges."  In addition, at least five of the fifteen voting members of the Advisory Committee on Civil Rules (including its chair, Judge Campbell) have some connection with, or have spoken at meetings sponsored by, the Federalist Society or LCJ.  You don't hear a lot about this – it may not be polite to mention it.

In any event, it is not surprising that the Advisory Committee and the Standing Committee have passed the proposed amendments to the FRCP.  The amendments include all of the LCJ's top three priorities as stated on its website:

LCJ’s FRCP Project promotes the corporate and defense perspective on all proposed changes to the FRCP and works proactively to achieve specific rule reforms by galvanizing corporate and defense practitioners and legal scholars to offer consensus proposals to the rule makers.  Our  current federal rulemaking agenda is focused on reining in the costs and burdens of discovery through FRCP amendments related to our three pillars of discovery reform: (1) a national and uniform spoliation sanction approach; (2) a fair and practical revised scope of discovery; and (3) development of incentive-based “requester pays” default rules.

It is true that the proposed amendment to Rule 26(c) only states explicitly what courts are already doing, based on their implicit power in the present rule.  And the Committee, in an attempt to calm plaintiffs' fears, added in the Committee Note a statement that cost-shifting should not become the norm.  But I suspect we haven't seen the last of this: LCJ will continue its efforts to make cost-shifting the "default rule."               

 

September 11, 2014 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (1)

Wednesday, September 10, 2014

FJC Researchers Find FRCP Form 11 Seldom Used Even Before Twiqbal

For a less sanguine view of the FRCP Forms' usefulness than that contained in my last two posts (here and here), see the recent article posted on SSRN by Jason A. Cantone and Joe S. Cecil (both of the Federal Judicial Center) and Dhairya Jani, entitled "Whither Notice Pleading?: Pleading Practice in the Days Before Twombly." 

Abstract:

Most scholars mark the end of notice pleading in federal civil cases at the time of the Supreme Court’s 2007 decision in Twombly v. Bell Atlantic or, at the latest, at the Court’s 2009 decision in Ashcroft v. Iqbal. Scholars have noted occasional departures from the notice pleading standards in more complex civil cases, but notice pleading has been thought to be the prevalent practice in simple negligence cases. This article examines two sets of complaints filed in federal district courts before Twombly in 2006 in cases alleging injuries from simple automobile accidents. We find that the practice of notice pleading, as indicated by Form 11 in the Appendix of Forms that accompany the Federal Rules of Civil Procedure, had already been abandoned in routine cases before Twombly in favor of narrative pleading that provides a fuller expression of the factual context of the claim. If pleading practice did not follow the notice pleading standard before Twombly in simple negligence cases that had the benefit of specific Form 11 guidance, it is doubtful that attorneys adhered to notice pleading in other more complex federal civil cases. In this regard, our findings also raise doubts about the utility of Form 11. While others have attributed the demise of notice pleading to concerns about abuse of discovery, the absence of notice pleading in these simple cases with little contentious discovery requires additional explanation. In discussing our findings, we also briefly explore the psychology of pleading and whether the emergence of narrative pleading was an unintended consequence of a series of amendments to the Federal Rules of Civil Procedure starting in the mid-1980s intended to allow more effective judicial management of litigation. While the Twombly/Iqbal plausibility standard certainly presents a heightened standard than notice pleading, the trend is clear: lower courts had already started to abandon the Conley notice pleading standard and pleading additional facts beyond the requirements of a notice pleading standard predated Twombly or Iqbal.

 

The authors state in their opening footnote: "The views expressed herein are those of the authors and not necessarily those of the Federal Judicial Center. This manuscript was initially prepared for presentation at the Conference on Empirical Legal Studies in October 2013."

 

September 10, 2014 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Tuesday, September 9, 2014

More Praise for the FRCP Forms

Speaking of the possibly soon-to-be-extinct official forms following the Federal Rules of Civil Procedure, Professor A. Benjamin Spencer has posted on SSRN his article, "The Forms Have (Had?) a Function," forthcoming in Nevada Law Journal.

Abstract:     

The Official Forms appended to the Federal Rules of Civil Procedure are a seeming anachronism, more appropriate for a much simpler time that hardly characterizes modern day federal civil litigation. Perhaps the form for a negligence complaint is the most striking in this regard, offering only that at a certain time and place “the defendant negligently drove a motor vehicle against the plaintiff,” causing harm. Not only does such a complaint fail to typify the negligence claims one might find on any federal docket, but it neither seems to reflect the much greater complexity that characterizes modern litigation and life in general.

What then could be the continuing point of having the forms at all? Indeed, that is the question the Advisory Committee on Civil Rules (“Advisory Committee”) has asked and answered quite recently: It has concluded that the Official Forms no longer serve any useful purpose and may therefore be discarded into the waste bin of history. Seemingly without much further thought, the Standing Committee promptly concurred, putting the forms on an all-but-certain course toward oblivion.

Might it be true that the forms have outlived their usefulness? And if no longer of any use, were the forms ever of any real utility? On the occasion of the pending abrogation of the Official Forms, this article takes the opportunity to review the history and use of the forms, finding that they had more value than the current rulemakers cared to acknowledge: The principal function of the forms was to reify the liberal vision of the Federal Rules and to guard against deviations therefrom. Unfortunately, as that liberal vision has given way to a more restrictive view in what Stephen Subrin refers to as the “fourth era” of civil procedure, the unyielding simplicity and permissiveness of the forms have become too much for the otherwise changing system to bear. Below, then, is a eulogy of the forms.

 

September 9, 2014 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

FRCP Amendments Will Casually Wipe Out Three Dozen "Official Forms"

Today, I'm taking the amendments a bit out of numerical order to talk about the proposal to abrogate Rule 84 and to abrogate all thirty-six of the official forms following the FRCP.  (The only official forms to be retained in any format would be Forms 5 and 6, relating to waiver of service of process, which would now be referred to in FRCP 4(d) and, slightly revised, appended to FRCP 4.) 

This may be the most far-ranging of all the proposed amendments, and actually looks a bit shocking when you see it (I'm probably easily shocked, though):

Rule 84. Forms

[Abrogated (Apr. __, 2015, eff. Dec. 1, 2015).]

The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.

APPENDIX OF FORMS

[Abrogated [(Apr. __, 2015, eff. Dec. 1, 2015).]

As with many of the proposed amendments, this one seemingly came out of nowhere.  It was not the subject of any presentation at the 2010 Duke Conference, nor was it mentioned in the Advisory Committee's Report to the Chief Justice as having been discussed at the Duke Conference. 

So what happened?  Why did the Committee suddenly advocate sweeping away dozens of seventy-year-old familiar forms?  Judge Campbell tried to explain during the public hearing in January 2014:

The motivation on the part of the Committee, if I can dare to try to characterize what we are all thinking, but I think it's accurate, is to get us out of the forms business.  In part because many of the forms are outdated.  We don't do a good job, and, in fact, it would be very difficult to do a good job of keeping them current through the full Rules Enabling Act process.  Not all of the rules committees, as you know, run their forms through the Enabling Act process.  And our thought has been it's going to be virtually impossible to stay on top of that.  We haven't done a good job.  They are outdated.  Nobody uses them.  Let's just get out of the forms business and leave it to other entities to propose forms.

The Advisory Committee suddenly wants to "get out of the forms business"?  The Committee has been promulgating forms since the adoption of the FRCP in 1938.  Just seven years ago, in 2007, the Committee added six brand-new official forms (Forms 1 through 6) and stylistically revised all the rest of the decades-old forms. 

"Nobody uses" the forms?  But that is simply not true.  Even after Iqbal, federal appellate courts have continued to rely on the forms as guideposts for notice pleading.  E.g., Garcia-Catalan v. United States, 734 F.3d 100, 104 (1st Cir. 2013); Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 687 (7th Cir. 2012); Hamilton v. Palm, 621 F.3d 816, 818 (8th Cir. 2010); Harris v. Rand, 682 F.3d 846, 850-51 (9th Cir. 2012).  See also, e.g., Villa v. Ally Fin., Inc., No. 1:13CV953, 2014 WL 800450 (M.D.N.C. Feb. 28, 2014).

I was one of 109 law professors who joined in a public comment filed by Professor Jonathan Siegel opposing the abrogation of the forms.  This comment focused on the tension that Twombly and Iqbal created with the pleading standard of Rule 8(a)(2) that a complaint contain "a short and plain statement of the claim, showing that the pleader is entitled to relief."  Rule 84 declares that the forms "suffice" to satisfy the requirements of the rules, which includes 8(a)(2), and Forms 10-21 are examples of different types of complaints.  The Committee's abrogation of the forms that illustrate pleading constitutes a sub silentio approval of Twombly and Iqbal

But the problem with abrogating the forms extends beyond the sufficiency of pleading a claim for relief.  The forms also illustrate numerous other essential steps in federal procedure, such as:

  • How to write a caption and a signature block (Forms 1 and 2);
  • The form of summons (Forms 3 and 4);
  • How to plead federal subject matter jurisdiction (Form 7);
  • How to note a party's death or state reasons for omitting a party under Rule 19(a) (Forms 8 and 9);
  • How to answer and move to dismiss (Forms 30, 31, and 40);
  • How to bring in a third-party defendant or intervene (Forms 41 and 42);
  • How to request the production of documents or admissions under Rule 36 (Forms 50 and 51);
  • How to report on the parties' 26(f) meeting (Form 52);
  • What a judgment looks like (Forms 70 and 71); and
  • How to consent to a magistrate (Forms 80, 81, and 82).  

In addition to showing what "suffices," these forms are helpful to pro se litigants and to small-firm practitioners who lack the experience or resources to access the extensive collection of forms available to large-firm practitioners.  Most of the Advisory Committee members formerly practiced or currently practice at such large firms.

 

September 9, 2014 in Federal Rules of Civil Procedure | Permalink | Comments (0)