Wednesday, May 25, 2016
The indefatigable Advisory Committee on Civil Rules met on April 14, 2016 and prepared a report to the Committee on Rules of Practice and Procedure (the Standing Committee), which will meet June 6-7, 2016. The report begins at page 251 of the Agenda book, and the draft minutes of the April 14 meeting begin at page 489 of the Agenda book.
The report has three parts. First, the Advisory Committee recommends that the Standing Committee approve proposed amendments to Rule 5 (e-service and e-filing), Rule 23 (class actions), and Rule 62 (stays of execution of judgment) for publication this summer.
Second, the Advisory Committee recommends that the Standing Committee approve two pilot projects for submission to the Judicial Conference. The first pilot project would test a system of mandatory initial disclosures that would be more robust than those currently required by Rule 26(a)(1). The second pilot project would test the effectiveness of court-wide adoption of practices to reduce “cost and delay.”
Third, the Advisory Committee:
(a) “describes proposals under active consideration for eventual publication and adoption,” including:
- a new subdivision of Rule 5.2 dealing with redaction (super exciting stuff!);
- studying “concerns about the operation of Rule 30(b)(6)(deposition of an entity)”; and
- “consideration of the Rule 81(c) provisions for demanding a jury trial after a case is removed from state court”; and
(b) briefly mentions suggestions for rules amendments that the Committee has “removed from the agenda” (i.e., rejected for now), including:
- the “separate document” requirement of Rule 58;
- suggestions to assist pro se litigants;
- amending the pleading standard in Rule 8(a)(2) (“The time has not yet come for such a project.”); and
- mandatory disclosure of third-party financing arrangements.
In future posts, I will discuss some of these developments in more detail.
Wednesday, March 30, 2016
Today on the Courts Law section of JOTWELL is Suja Thomas’ essay, Redefining Efficiency In Civil Procedure. Suja reviews Brooke Coleman’s recent article, The Efficiency Norm, 56 B.C. L. Rev. 1777 (2015).
Tuesday, March 29, 2016
My latest article, The Rise and Fall of Plausibility Pleading?, has just been published in the Vanderbilt Law Review. It builds on some of my earlier work on pleading (here and here), focusing on the Supreme Court’s post-Iqbal decisions on pleading standards (e.g., Johnson v. City of Shelby; Wood v. Moss; Matrixx Initiatives, Inc. v. Siracusano). Here’s the abstract:
The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, "plausibility pleading," that upended the notice-pleading approach that had long prevailed in federal court. Whether a complaint could survive a motion to dismiss — it was argued — now depends on whether the court found the complaint plausible, allowing courts to second-guess a complaint’s allegations without any opportunity for discovery or consideration of actual evidence. Lower courts began to cite Twombly and Iqbal at a remarkably high rate, and empirical work revealed their effect on both dismissal rates and litigant behavior.
Although Twombly and Iqbal were troubling on many levels, the rise of a newly restrictive form of plausibility pleading was not inevitable. There was — and still is — a path forward that would retain the notice-pleading approach set forth in the text of the Federal Rules themselves and confirmed by pre-Twombly case law. This Article describes this reading of Twombly and Iqbal, and explains how more recent Supreme Court pleading decisions are consistent with this understanding. It is crucial, however, that these post-Iqbal decisions and the approach to pleading they reflect receive the same attention that accompanied Twombly, Iqbal, and the rise of plausibility pleading. Otherwise the narrative that Twombly and Iqbal compel a more restrictive pleading standard may become further entrenched, compounding the adverse effects of those problematic decisions.
Friday, March 25, 2016
This week the Supreme Court issued its decision in Tyson Foods, Inc. v. Bouaphakeo, covered here, here, and here. Tyson Foods is one of several important class action cases on the Court’s docket this Term—and the second one decided so far. Like Campbell-Ewald back in January, the Tyson Foods decision is generally good news for proponents of class actions. By a 6-2 vote, the Court upheld class certification under Rule 23(b)(3).
Justice Kennedy wrote the majority opinion, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts wrote a separate concurring opinion, which was joined in part by Justice Alito. Justice Thomas wrote a dissenting opinion, which Justice Alito joined. All the opinions are worth a read, but below are a few highlights from Justice Kennedy’s majority opinion.
First, Justice Kennedy emphasized that the presence of some individualized issues is not fatal to Rule 23(b)(3)’s predominance requirement:
The predominance inquiry “asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.” [2 W. Rubenstein, Newberg on Class Actions], §4:49, at 195–196. When “one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.” 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1778, pp. 123–124 (3d ed. 2005) (footnotes omitted).
Justice Kennedy also provided some important guidance on the Supreme Court’s 2011 Wal-Mart decision, clarifying that “Wal-Mart does not stand for the broad proposition that a representative sample is an impermissible means of establishing class-wide liability.” He recognized the practical reality that “[i]n many cases, a representative sample is ‘the only practicable means to collect and present relevant data’ establishing a defendant’s liability. Manual of Complex Litigation §11.493, p. 102 (4th ed. 2004).” And:
In a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class. To so hold would ignore the Rules Enabling Act’s pellucid instruction that use of the class device cannot “abridge . . . any substantive right.” 28 U. S. C. §2072(b).
The Court ultimately did not resolve the second question in Tyson Foods, which was originally framed as “whether a class may be certified if it contains ‘members who were not injured and have no legal right to any damages.’” After noting that Tyson Foods had “reframe[d] this argument” in its merits brief, Justice Kennedy declined to address it “because the damages award has not yet been disbursed, nor does the record indicate how it will be disbursed.” The Court therefore remanded the case, recognizing that Tyson Foods “may raise a challenge to the proposed method of allocation when the case returns to the District Court for disbursal of the award.” In his final paragraph of analysis, however, Justice Kennedy noted that the potential for “uninjured class members” to recover from the class judgment appeared to be a problem “of [Tyson Foods’] own making,” because Tyson Foods had argued against having bifurcated liability and damages proceedings.
For additional coverage, check out:
- Perry Cooper (Bloomberg)
- Lyle Denniston (SCOTUSblog)
- Alexandra Lahav (Mass Tort Litigation Blog)
- Adam Liptak (New York Times)
Wednesday, January 20, 2016
The Supreme Court issued its decision today in Campbell-Ewald Co. v. Gomez, a closely watched case on class actions, Article III, and mootness (covered earlier here and here). Justice Ginsburg’s majority opinion begins:
Is an unaccepted offer to satisfy the named plaintiff ’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___, ___, n. 4 (2013) (slip op., at 5, 6, n. 4). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.
Justice Ginsburg’s opinion is joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas adds a sixth vote, but writes a separate concurring opinion. Chief Justice Roberts writes a dissenting opinion, joined by Justices Scalia and Alito, and Justice Alito writes a dissenting opinion as well.
Saturday, January 16, 2016
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.
- Overview, by Judge David Campbell (chair of the AC until October 2015 and a member of the AC since 2005)
- Cooperation, by Judge Gene Pratter (member of the AC from 2011 to present).
- Proportional Discovery, by Judge John Koetl (member of the AC from 2007 to 2014 and chair of the Duke Subcommittee).
- Early and Active Case Management, also by Judge Campbell.
- 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.)
Friday, January 15, 2016
Whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Thursday, January 7, 2016
Up on the Courts Law section of JOTWELL this week is Robin Effron’s essay, Anti-Plaintiff Bias in the New Federal Rules of Civil Procedure. Robin reviews Patricia Hatamyar Moore’s recent article, The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees, 83 U. Cin. L. Rev. 1083 (2015).
Saturday, January 2, 2016
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.”
Thursday, December 31, 2015
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).
Wednesday, December 2, 2015
Over at PrawfsBlawg, Jessica Berch reported on the announcement by the National Conference of Bar Examiners that the earliest that the latest FRCP amendments would be tested would be the July 2016 Multistate Bar Examination and Multistate Essay Examinations.
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.
Tuesday, December 1, 2015
Thursday, November 19, 2015
Professor Elizabeth Thornburg has posted on SSRN her article, Cognitive Bias, the "Band of Experts," and the Anti-Litigation Narrative. The article was written for the Clifford Symposium this past spring and is forthcoming, along with other articles from the symposium, in DePaul Law Review early next year.
In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable cognitive biases take this blend of politics, elite and often defense-side experience, and corporate manipulation of public opinion and blind the Rules Committee members to the possibilities of solutions that expand rather than contract information sharing. This article considers these phenomena, and recommends more heterogeneous committee membership, the use of deliberative processes that are more likely to overcome flawed heuristics, and greater reliance on non-opinion-poll data in the rulemaking process.
Tuesday, November 17, 2015
Law Professor Challenges the Seeming Federal Endorsement of Duke Nonbinding “Guidelines” on Proportionality Amendments
When I first read a draft of the Duke Center for Judicial Studies’ "Guidelines and Suggested Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality" (the “Duke Guidelines”), I was confused. I was aware, of course, that Duke Law School had sponsored the 2010 conference on civil litigation now known commonly as the “Duke Conference,” which spawned the amendments to the Federal Rules of Civil Procedure that, apart from divine intervention, appear certain to go into effect on December 1, 2015. The dean of Duke Law School is David F. Levi, a former federal district judge who was chair of both the Civil Rules Advisory Committee and the Committee on the Rules of Practice and Procedure (known as the Standing Committee). The papers that were presented at the Duke Conference are still posted on the official website of the United States courts.
In 2011, Duke Law School created the Duke Center for Judicial Studies, a primary goal of which was to offer “educational programs for judges.” In addition, the Center took over the publication of Judicature: The Scholarly Journal for Judges, which is “mailed free of charge to all Article III judges, federal magistrate judges, and state supreme court judges.”
It seems clear that Duke has positioned itself to appear as a quasi-official body with particular expertise and gravitas in matters of federal litigation. Even the Advisory Committee on Criminal Rules has met at Duke.
So this summer, as I read a draft of the “Duke Guidelines” regarding the “proportionality” amendment to the FRCP (which will require all discovery to be “proportional to the needs of the case”), I had a lot of questions. These aren’t binding, are they? [No.] Who wrote these? [According to the final version, mainly the Reporters, with Team Leaders and Team Members providing feedback.] At whose instigation? [The Duke Center’s Advisory Council.] Why on earth are they necessary? [Rhetorical.] Why were these being drafted well before the rules even become effective? Do these things have any basis in case law? Why don’t they compare what they are saying to the official Advisory Committee notes? Why don’t they give any concrete examples of a particular type of case such as employment discrimination? And isn’t there a Rules Enabling Act issue in here somewhere?
Despite all these questions, I frankly put the Guidelines out of my mind, after satisfying myself that the Duke Center was not representing that its Guidelines were legally binding, and after posting about their existence on this blog (stating that the Center had asked for comments).
Professor Suja Thomas of the University of Illinois College of Law, however, has challenged the federal courts’ seeming “official esteem” of the Duke Guidelines that results from various ties between Duke and the federal Rules Committees.
The “Roadshow” that Uses the Duke Guidelines to “Think About” Proportionality
As we reported earlier, the Duke Center and the ABA are jointly presenting an “unprecedented” "Roadshow" on the 2015 discovery amendments. The former chair and a former member of the Civil Rules Advisory Committee, Judge Lee Rosenthal and Professor Steven Gensler, respectively, will be the moderators for the Roadshow. As Professor Thomas has noted, the Roadshow’s emphasis on Judge Rosenthal’s and Professor Gensler’s former affiliation with the Advisory Committee “gives the training an imprimatur of approval.”
Monday, November 16, 2015
Valerie Nannery, Senior Litigation Counsel for the Center for Constitutional Litigation, attended the November 5, 2015 meeting of the Advisory Committee on Civil Rules (agenda here) in Salt Lake City, Utah, and reported on the meeting in the Center's blog.
Highlights from the Center's report:
Rule 23: "The Committee has taken a 'settlement class' rule off of the agenda, and has put 'ascertainability' and Rule 68 on hold. The Committee also approved taking cy pres and 'issue classes' off of the agenda."
Duke Center's private "Guidelines" on proportionality in discovery: “the Duke guidelines and any presentation at the conferences do not come with the imprimatur of the Rules Committees,” and “The Duke Center, like other groups, is free to hold conferences or propose guidelines with respect to the rules or any other area of law. But they are not entitled to communicate, or suggest, that they bear the stamp of approval of the Rules Committees.”
Tuesday, November 10, 2015
The Supreme Court heard oral argument today in Tyson Foods, Inc. v. Bouaphakeo, which presents the questions:
(I) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample.
(II) Whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.
Friday, October 30, 2015
In the latest issue of the Yale Law Journal is a note by Mark Kelley, Saving 60(b)(5): The Future of Institutional Reform Litigation. Here’s the abstract:
Institutional reform decrees are one of the chief means by which federal courts cure illegal state and federal institutional practices, such as school segregation, constitutionally inadequate conditions in prisons and mental hospitals, and even insufficient dental services under Medicaid. The legal standards governing federal courts’ power to modify or dissolve institutional reform decrees, a crucial tool that can be used to safeguard or sabotage these decrees’ continued vitality, are rooted in Federal Rule of Civil Procedure 60(b)(5). In Horne v. Flores, the Supreme Court tweaked Rule 60(b)(5) to make it easier for state and local institutions to modify or dissolve the institutional reform decrees to which they are bound. This Note argues that Horne has introduced considerable confusion and divergence among lower court approaches to the modification and dissolution of reform decrees, and has made it too easy for institutional defendants to escape federal oversight. At the same time, however, Horne rested on legitimate policy critiques of institutional reform litigation. This Note attempts to chart a middle ground between the doctrine’s detractors and defenders by making concrete proposals about how courts should resolve the confusion introduced by Horne. These recommendations would align the institutional reform doctrine with the policy critiques highlighted by the Court in Horne while still allowing for the effective vindication of constitutional rights.
Thursday, October 29, 2015
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
Friday, October 23, 2015
With the newest revisions to the Federal Rules of Civil Procedure due to take effect on December 1, 2015, a number of organizations, such as the ABA and other bar associations, are offering programs and webinars to ease the transition.
Perhaps most prominent is the "Rules Amendments Roadshow," a joint program of the American Bar Association Section of Litigation and the Duke Law Center for Judicial Studies billed as “a 13-City Tour Discussing The Most Important Federal Discovery Changes In Over A Decade.” The moderators will be Judge Lee H. Rosenthal and Professor Steven Gensler and panelists will include "local judges, magistrates, and top practitioners in each city." The "roadshow" starts in New York on November 10, continues in eleven more cities, and concludes in Miami on April 1. (No, this is not an April Fools' joke.)
The ABA is also offering a webinar entitled "The 2015 Amendments to the Federal Rules of Civil Procedure, Part 1: The Impact of Amended Rule 37(e) on E-Discovery,” on October 29, 2015 from 1:00 PM - 2:30 PM ET. The webinar faculty will be Carol Geisler, Legal Counsel, CVS/Caremark, Chicago, IL, Hon. Paul W. Grimm, US District Judge, District of Maryland, Greenbelt, MD, and Christopher M. Morrison, Partner, Jones Day, Boston, MA. The moderator will be Hon. Frank J. Bailey, US Bankruptcy Judge, District of Massachusetts, Boston, MA.
Local bar associations, such as the Tennessee Defense Lawyers Association are also offering programs.
Finally, although not a live program, the Defense Counsel Journal has an article in its October 2015 issue by Thomas Y. Allman entitled "The 2015 Civil Rules Package As Transmitted to Congress." Mr. Allman is a former General Counsel and Chair Emeritus of the Sedona Conference Working Group 1 on EDiscovery and the E-Discovery Committee of Lawyers for Civil Justice.