Monday, April 28, 2014

SCOTUS Approves Proposed Amendment to the FRCPs

The Supreme Court of the United States has approved an amendment to Rule 77 that, in the words of the Standing Committee on Rules of Practice and Procedure, “corrects a cross-reference to Rule 6(a) that should have been changed when Rule 6(a) was amended in 2009.” Unless Congress intervenes, the amendment will take effect on December 1, 2014.

Adjust your syllabi accordingly.

If you’re interested in the more controversial batch of proposed amendments that would revise the discovery rules and eliminate the Forms, the Supreme Court is not likely to be acting on those until Spring 2015. And there are still a number of steps in the process, the next of which is the Standing Committee’s meeting in May.

 

 

April 28, 2014 in Federal Rules of Civil Procedure | Permalink | Comments (0)

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)

Wednesday, April 9, 2014

Reinert on the Burdens of Pleading

Alex Reinert (Cardozo) has published on SSRN a draft of his article, The Burdens of Pleading, which will be published in the University of Pennsylvania Law Review. Here is the abstract:

The changes to pleading doctrine wrought by Bell Atlantic v. Twombly and Ashcroft v. Iqbal have been criticized on many grounds. As many commentators have noted, the plausibility pleading doctrine introduced by these cases is consistent with other procedural reforms that have the effect of limiting access of putative plaintiffs to federal civil adjudication. In this Article, I argue that Twombly and Iqbal are more than just the most recent examples of anti-litigation reforms. Plausibility pleading asks federal courts – for the first time since the advent of the Federal Rules of Civil Procedure – to use their "judicial experience and common sense" to assess the likelihood of a claim’s success prior to discovery. But the very characteristics of the procedural changes leading up to Twombly and Iqbal – fewer trials, an increase in private adjudication such as arbitration, pervasive secrecy, and increased use of summary judgment – also make it far less likely that judges will have the experience necessary to reliably apply plausibility pleading. In the absence of relevant information, judges are likely to fall back on heuristics that will take them farther from an accurate decision on the merits. The result, I contend –one that is confirmed by the empirical data available to date – will be an increased dismissal of cases that is essentially random rather than merit-based.

 

 

 

April 9, 2014 in Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (1)

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, April 1, 2014

SCOTUS Cert Grant: FRCP 52 and Patent Cases

Yesterday the Supreme Court granted certiorari in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. (No. 13-854). Here is the question presented: 

Rule 52(a) of the Federal Rules of Civil Procedure provides that in matters tried to a district court, the court’s “[f]indings of fact ... must not be set aside unless clearly erroneous.”

The question presented is as follows: 

Whether a district court's factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for clear error, as Rule 52(a) requires.

More info available at SCOTUSblog.

 

April 1, 2014 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, March 26, 2014

Today's SCOTUS Oral Argument in Wood v. Moss

Here’s the transcript of today’s Supreme Court oral argument in Wood v. Moss. It’s a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his visit to a restaurant in Oregon. They allege that the defendants, who were secret service agents, engaged in unconstitutional viewpoint discrimination by moving them farther away from the President than a similar group that was expressing support for the President.

The crux of the defendants’ position is that they are protected by qualified immunity, but the case could have ramifications for pleading standards more generally. The argument included quite a bit on Iqbal, and there were several questions about the discovery that would likely ensue if the claims were allowed to move forward.

PS: Here is an analysis of the oral argument by Lyle Denniston (SCOTUSblog).

 

March 26, 2014 in Federal Rules of Civil Procedure, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

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)

Monday, February 24, 2014

More on the Proposed Abrogation of Rule 84

Brooke Coleman has posted a guest blog entry on the patent blog, PatentlyO, regarding the proposed abrogation of Rule 84 and the official forms.

February 24, 2014 in Federal Rules of Civil Procedure | Permalink | Comments (1)

Unprecedented Number of Public Comments on Proposed FRCP Changes

Tony Mauro at the National Law Journal has an article this morning entitled Lawyers Spar Over Discovery Rules.  He reports, "More than 2,200 lawyers and others took the time in recent weeks to file sometimes impassioned ­comments with a committee of the Judicial Con­ference over proposals to narrow pretrial discovery and ease sanctions for failure to preserve documents. The deadline for comments was Feb. 18."

 

February 24, 2014 in Federal Rules of Civil Procedure, In the News | Permalink | Comments (0)

Saturday, February 15, 2014

Extended Deadline for Submitting Comments on the Proposed FRCP Amendments

Today was, originally, the deadline for submitting comments on the proposed amendments to the Federal Rules of Civil Procedure. The deadline has been extended to Tuesday, Feb. 18. The following announcement appears on the U.S. Courts website:

NOTE: To accommodate scheduled website maintenance, the deadline for submitting public comments has been extended. Comments must be submitted by 11:59 PM ET on February 18, 2014.

Download USCourts.gov pdf 

 

February 15, 2014 in Federal Rules of Civil Procedure, Web/Tech | 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)

Friday, February 7, 2014

Joint Comment on the Proposed FRCP Amendments

This week, some colleagues and I submitted a joint comment opposing the recently proposed amendments to the Federal Rules of Civil Procedure. Our letter addresses the proposals regarding the scope of discovery as defined by Rule 26(b)(1), the reduced presumptive limits on discovery devices, and the elimination of Rule 84 and the Forms. From the introduction: 

In our judgment, two key issues bear close consideration by the Committee as it considers how to proceed: (1) What problem does the Committee seek to solve? (2) On balance, how likely is it that the proposed amendments will improve the status quo? As in 1993 and 2000, the Committee is focused on addressing a perceived problem of excessive discovery costs. In supporting the current proposed amendments, the Committee recognizes that empirical data show no widespread problem, but nevertheless hopes that new across-the-board limits on discovery will lessen discovery costs in the small number of complex, contentious, high stakes cases where costs are high. The Committee is correct about the data: most critically, the Federal Judicial Center’s (“FJC”) 2009 closed-case study shows that in almost all cases discovery costs are modest and proportionate to stakes. 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.

The comment was submitted on behalf of myself, Helen Hershkoff (NYU), Lonny Hoffman (Houston), Alexander Reinert (Cardozo), Elizabeth Schneider (Brooklyn), and David Shapiro (Harvard).

 

February 7, 2014 in Adam Steinman, Federal Rules of Civil Procedure | Permalink | Comments (0)

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)

Friday, January 31, 2014

More Public Comments (Including Mine) on the Proposed FRCP Amendments

Today I submitted my comments on the proposed amendments to the Federal Rules of Civil Procedure.  My comments do not yet appear on the government's web site, so in the meantime you can see them on my SSRN page here. 

There are over 500 comments posted on Regulations.gov as of this morning, and many of the comments provide an excellent provision-by-provision analysis of the proposals.  I chose instead to offer four more general observations in opposition to the proposals, as follows:

First, the most objective and reliable measure of "cost" before the [Advisory] Committee is contained in the 2009 study by the Federal Judicial Center, which shows neither out-of-control costs nor an increase in costs over time.  Second, one objective and reliable measure of "delay" is case disposition time, a statistic maintained by the Administrative Office of the Courts.  The AO's statistics show that the median disposition time for a civil case (from case filing to final disposition) has maintained stability for twenty-five years, from 7 months in 1986 to a still-brisk 7.8 months in 2012, a difference of about 24 days.  Third, contrary to the Committee's apparent belief, lawyers and judges are well aware of the concept of "proportionality" in discovery and apply it frequently.  Fourth, the federal courts are widely perceived to favor defendants, and the adoption of these proposals will intensify that perception, because the proposals do, in fact, favor defendants. 

We reported on January 1 that approximately 86% of the commenters at that time opposed the amendments.  As of January 21, approximately 80% opposed. 

We also reported earlier that Professor Brooke Coleman testified in opposition to the proposal to abrogate Rule 84 on January 9 before the Advisory Committee in Phoenix.  A transcript of the hearing for that day is now posted here.

The deadline for submitting comments is February 15, 2014. 

January 31, 2014 in Federal Rules of Civil Procedure | Permalink | Comments (1)

Monday, January 6, 2014

Coleman on the Proposed Abrogation of Rule 84 and the Forms

Brooke Coleman has posted an essay on SSRN, "Abrogation Magic: The Rules Enabling Act, Civil Rule 84, and the Forms."  Professor Coleman is testifying this week in Phoenix at the Civil Rules hearing, and the essay reflects the comments she intends to make.

Abstract:    

The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof — after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act of 1934. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond. Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments. This Essay argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear.


January 6, 2014 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (1)

Saturday, January 4, 2014

Federal Judges Pull No Punches on AALS Civil Procedure Section Panel

This morning I attended the Civil Procedure Section program, "Innovations in the District Courts: How Judges and Districts Can Address Cost, Delay and Access to Justice."  Moderated by Dean Matthew Diller, it was a lively panel of four federal judges:

Judge Julie Robinson, D. Kan.

Judge Shira Scheindlin, S.D.N.Y.

Judge Lois Bloom, Magistrate Judge, E.D.N.Y.

Judge William Young, D. Mass.

Judge Robinson is Chair of the National Committee of the Judicial Conference of the United States and chaired the Court Administration and Case Management Committee.  "My committee, as opposed to the Rules Committee, works very quickly," she said.

This committee publishes and maintains the Civil Litigation Management Manual (not the Complex Litigation Manual) and collects best practices at the district court level, focusing on what she called "non-complex litigation."  For example, Judge Robinson cited Judge Koetl's pilot project focusing on the case management of employment cases.  She characterized employment cases as "non-complex," but stated that they cause "operational pain."  Among other items, the pilot calls for reciprocal exchange of information ("the universe") at the beginning of a case.  Judge Robinson's committee also oversees the pilot program for patent cases.

Her committee is also improving the functionality of the CM/ECF system to manage caseloads, not just cases.  She referred to a "three-year benchmark" for terminating civil cases, and stated that judges have a responsibility to the federal system to move cases.  Her committee focuses on the most congested courts in the system on the civil side of the docket.  The committee studies why these courts are congested and what kinds of resources can be deployed to help.

Judge Scheindlin described the ongoing pilot project in the Southern District of New York for complex cases.  She believes that many of the innovations are not necessary for the run-of-the-mill, non-complex cases.  The subject areas for this pilot project are stockholders' suits, products liability, antitrust, trademark, patent, securities, all class actions, and multidistrict litigation.  She said that FLSA cases are now about 10% of the project.

To inform the pilot project, the FJC conducted a survey of attorneys about case management.  I believe the results of this survey are published, and Judge Scheindlin spoke very quickly about a number of the survey findings.  Just a few items that I managed to get down were that 60% of attorneys said they had a 26(f) conference, and said that the 26(f) conference had little effect on cost or fairness (or actually increased cost).  Attorneys reported that discovery was stayed in about 30% of cases pending a motion to dismiss.  Also, attorney reported that there was no ESI involved in about 40% of cases, a result Judge Scheindlin found surprising. 

Judge Scheindlin described the components of the pilot project in some detail, which I will only highlight here.  Expensive and voluminous privilege logs are downplayed because they are now "unnecessary" with Rule 502 of the Federal Rules of Evidence. 

Document discovery, but not depositions, should presumptively proceed while a motion to dismiss is pending.  A sample of documents should be provided to the judge to make privilege rulings.  Interestingly, Judge Scheindlin advocated a "pre-motion conference" for virtually all motions, in which the attorneys summarize what they intend to argue, and the judge gives feedback as to what should be briefed, what argument is a loser, etc.  Oral argument on all substantive motions is recommended, along with very strictly-enforced page limitations on briefs (25, 25, and 10).

Judge Scheindlin later suggested that summary judgment was overused, and that a judge's decision will never have the same credibility as the judgment of the community in a jury trial.  Noting the "huge amount" of papers in a summary judgment motion, she sometimes asks herself, "What are these lawyers thinking?  They could have tried this case" in the time it took to prepare the motion. 

Judge Lois Bloom, who oversees all pro se litigation in the Southern District of New York, spoke on access to justice and pro se litigation.  She began by noting that US statute allows parties to conduct their own cases personally, and that the court house door is open to everyone.  Judge Bloom stated that approximately 25% of federal district courts' civil caseload involves pro se litigants, and that percentage rises to 40% at the appellate court level.  Approximately 96% of prisoner litigation is pro se, but less than half of the pro se cases are now brought by prisoners. 

Examples of these pro se cases include, on the plaintiff side, employment discrimination cases and fair debt collection practices cases, and on the defendant side, student loan recovery and illegal downloading.  The same FRCP apply, but there are some special rules for pro se cases.  Judge Bloom created special form orders such as to get initial disclosures in employment cases.  

She stated that she "would rather have an earnest pro se litigant than a bad lawyer, any day."  To give people their day in court means holding repeated conferences.  She shows concern for ordinary citizens, stating that "every week" she gets more cases about "the bad things that happen to people" on a stop-and-frisk.

Judge Bloom recognizes a "strong link between procedural justice and how people perceive the courts."  She hopes law schools will highlight the fact that 25% of civil cases are now pro se, and encourages Civil Procedure professors to keep students' eyes on the ultimate goals of litigation, not the discrete procedural steps along the way. 

Judge Young, batting cleanup, warned he might "come off as a skunk at the wedding."  He endorsed his colleagues' suggestions, but stated in general, "We have so deconstructed the role of the trial judge" that "we think the goal is through-put," or getting the cases through.  But the goal is adjudication.  "That is what is special about judges."  Settlement and mediated resolution are by-products of the drive towards trial.  Trial is what focuses the litigants' and the trial lawyers' minds.

He stated that the jury is "dying."  In the last eight years a person's chance of being seated as a juror in federal court has declined more than 30%.  Federal judges are on the bench less than ever.  The average district court judge tries less than one case a month, or about eight to nine trials a year.  So there's less fact-finding, which "foreshadows the twilight of judicial independence."  He referred the audience to an article by Judge Lee Rosenthal and Professor Steven Gensler about "the reappearing judge," and to an article by Judge Young in Penn State Law Review.

Judge Young said there was a need to focus on enhancing our jury system.  He noted that the strategic plan for the US District Courts only mentions jurors twice.  Jurors should be allowed to take notes and ask questions as a matter of course.  Moreover, even if the statute isn't changed, individual judges can require 12-person jurors.  Social science research suggests that the best size for small-group decision-making is 10 to 14 persons.  Judge Young believes there is a need for scholarship on issues relating to juries, including the American juror as a constitutional officer as to which Congress should not be able to cut off funding. 

Judge Young said that "we ought to be thinking of ourselves more as federal courts than as individual judges," adding that "injustice anywhere in the United States is injustice everywhere."  He praised the committee on inter-circuit assignment; for example, thirty-two judges were lined up to try tobacco cases in the Middle District of Florida.  He advocated for more inter-circuit assignment of cases. 

Judge Young also stated that "although we deny it, the grants of summary judgment are too frequent."  He called affidavits the "Potemkin villages" of modern procedure, all facade and nothing inside.  He also branded status conferences as "a terrible waste of time," suggesting instead that "you set the key dates and you don't move them."  He also said that people don't necessarily want a trial: they want the reasonable expectation of a trial.  That is what "brings the economically powerful to the bargaining table." 

Dean Diller then asked the panelists about the proposed amendments to the FRCP. 

Judge Bloom responded that she believed that rules committees were "self-perpetuating," and that we needed to get away from the idea that the rules need to be amended every few years.  She thinks that the new proposals are being pushed by defense attorneys who want to cut back on plaintiffs' access.  In the Eastern District of New York, where civil cases are automatically assigned to a magistrate judge until the time of trial, "it is a real outlier" that needs any revision to the rules.  She believes that the "proportionality" amendment will be a "Pandora's box." 

Judge Robinson agreed that the proposed amendments would cause at least as much "operational pain" as they would cure. 

Professor Liz Schneider from Brooklyn Law School posed a hypothetical: what if the SDNY passed a local rule that "we discourage the filing and granting of summary judgment motions."  Judge Scheindlin indicated that many law firms would not be receptive because it would hurt their revenues.  "If the lawyers cared about cost, they wouldn't do summary judgment motions."

January 4, 2014 in Conferences/Symposia, Federal Courts, 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)

Tuesday, December 17, 2013

Members of Civil Rules Advisory Committee Explain and Defend Proposed FRCP Amendments

An ABA Webinar cast earlier this afternoon entitled "The Proposed Revisions to the Federal Rules of Civil Procedure" featured three members of the Civil Rules Advisory Committee, John M. Barkett (moderator), Judge John Koetl, and Judge Paul Grimm. 

I will not repeat the bulk of the presentations, as the Advisory Committee transmittal memorandum and notes on the proposed amendments cover much of what was said. 

Judge Koetl stated that the major themes that emerged at the 2010 Duke Conference (out of which the proposed amendments grew) to reduce the "cost and delay" of civil litigation were proportionality of discovery, cooperation among lawyers, and early and active judicial case management.  

In the category of early and effective judicial case management, the proposals include (among others) suggesting the addition of new topics to the scheduling order, such as a provision that the court can direct that before moving for discovery the parties must have a conference with the court.

This last point was interesting, because Judge Koetl stated that "about a third of the federal judges in the country do that now," and that those judges who do have found that it eliminates most discovery motions.  He stated that there was talk of making this requirement mandatory, but "because most judges don't do it, we only encouraged it." 

Turning to the proposals dealing with "proportionality" in discovery, Judge Koetl stated that the scope of discovery under Rule 26(b)(1) is changed in three main ways:

1. It is limited to matter that is relevant to a party's claim or defense.  The current provision allowing the ordering of discovery "relevant to the subject matter" for "good cause" should be deleted.

2.  The current statement of proportionality is "effectively buried" in Rule 26(b)(2)(C)(iii), so it should be moved to be within Rule 26(b)(1).

3.  The current provision that says relevant information need not be admissible in evidence, if the discovery is reasonably calculated to lead to the discovery of admissible evidence, should be changed.  That provision was intended, Judge Koetl asserted, to be an answer to something like a hearsay objection at a deposition; instead, that language has been used in some cases to expand the scope of discovery beyond its original intent.  The proposed revision says information within the (proposed revised) scope of discovery need not be admissible in evidence to be discoverable. 

Every listener who posed a question to the panel was at least somewhat critical of the proposed amendments.  One listener argued that there was no empirical support for the proposition that there is no "proportionality" in discovery currently, and believed that the proposals were "punishing the innocent majority for the malfeasance of the minority."  Judge Koetl responded that the studies that were conducted for Duke both by the FJC and others reflected measurable dissatisfaction "by a significant number of lawyers for plaintiffs and defendants with respect to discovery being disproportional with respect to the stakes in the case."  It was not a majority who found costs disproportional, but it was "a significant number of cases." 

Judge Koetl also briefly covered the reduction in presumptive limits on certain discovery devices (for example, the reduction from 10 to 5 depositions), and the proposed revision to Rule 1 to remind lawyers of their duty to cooperate.  Judge Grimm covered the proposed amendments to Rule 37 on preservation and spoliation standards.

Mr. Barkett reminded listeners that upcoming hearings were January 9 in Phoenix and February 7 in Dallas.  The public comment period closes Feb. 15, 2014.  See Adam Steinman's earlier post here.

December 17, 2013 in Conferences/Symposia, Federal Rules of Civil Procedure | Permalink | Comments (0)

Monday, December 16, 2013

ABA Webinar Tomorrow on Proposed FRCP Amendments, Free to Litigation Section Members

If you are a member of the ABA's Litigation section, you might want to check out this webinar tomorrow, Tuesday, December 17, 2013, at 1:00 pm EST on The Proposed Revisions to the Federal Rules of Civil Procedure.  Registration is free to Litigation section members, $100 to ABA members, and $130 to the general public.

The panel includes:

Hon. John Koeltl, Member, Advisory Committee on Civil Rules, Judge, U.S. District Court for the Southern District of New York, New York, NY

Hon. Paul Grimm, Member, Advisory Committee on Civil Rules, Judge, U.S. District Court for the District of Maryland, Baltimore, MD

John M. Barkett (Moderator), Member, Advisory Committee on Civil Rules, Partner, Shook, Hardy & Bacon, Miami, FL

Hon. John Koeltl, Member, Advisory Committee on Civil Rules, Judge, U.S. District Court for the Southern District of New York, New York, NY

Hon. Paul Grimm, Member, Advisory Committee on Civil Rules, Judge, U.S. District Court for the District of Maryland, Baltimore, MD

John M. Barkett (Moderator), Member, Advisory Committee on Civil Rules, Partner, Shook, Hardy & Bacon, Miami, FL

- See more at: http://apps.americanbar.org/cle/programs/l13rcp1.html?sc_cid=CEL3RCP-C#sthash.M4UUGA8Y.dpuf

Hon. John Koeltl, Member, Advisory Committee on Civil Rules, Judge, U.S. District Court for the Southern District of New York, New York, NY

Hon. Paul Grimm, Member, Advisory Committee on Civil Rules, Judge, U.S. District Court for the District of Maryland, Baltimore, MD

John M. Barkett (Moderator), Member, Advisory Committee on Civil Rules, Partner, Shook, Hardy & Bacon, Miami, FL

- See more at: http://apps.americanbar.org/cle/programs/l13rcp1.html?sc_cid=CEL3RCP-C#sthash.M4UUGA8Y.dpuf

December 16, 2013 in Conferences/Symposia, Federal Rules of Civil Procedure | Permalink | Comments (0)

Tuesday, December 3, 2013

SCOTUS Decision in Atlantic Marine: Forum-Selection Clauses and Venue Transfer

Today the Supreme Court issued a unanimous decision in Atlantic Marine Constr. Co. v. United States Dist. Court for Western Dist. of Tex. (No. 12-929), which considers the proper procedural vehicle for enforcing a contractual forum-selection clause when the plaintiff files in a federal district that violates that clause. A few highlights from the opinion by Justice Alito:

  • Motions under Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a) are not appropriate in this situation. A forum-selection clause does not make a venue “improper” for purposes of Rule 12(b)(3) or “wrong” for purposes of § 1406(a). [See pp. 4-8]
  • A motion to transfer under 28 U.S.C. § 1404(a) is appropriate in this situation. Section 1404(a) “provides a mechanism for enforcement of forum-selection clauses that point to a particular federal district.” [p.9]
  • “[T]he appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens.” [pp.9-10]
  • It remains an open question whether a forum-selection clause could be enforced through other vehicles, such as a Rule 12(b)(6) motion. This possibility had been urged by Professor Stephen Sachs in amicus brief, but the Court did not address it because the parties themselves did not raise it. Justice Alito adds: “Even if a defendant could use Rule 12(b)(6) to enforce a forum-selection clause, that would not change our conclusions that § 1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forum-­selection clause and that §1404(a) and the forum non conveniens doctrine provide appropriate enforcement mechanisms.” [p.11]

The opinion then addresses how a court should decide a § 1404(a) motion to enforce a forum-selection clause. Justice Alito writes: 

“When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause.5 Only under extraordinary circumstances unrelated to the convenience of the parties should a §1404(a) motion be denied.” [p.11]

(Footnote 5 makes clear that the Court’s analysis “presupposes a contractually valid forum-selection clause,” which leaves open the possibility that such a clause could be challenged as contractually invalid.) Justice Alito then explains: “The presence of a valid forum-selection clause requires district courts to adjust their usual §1404(a) analysis in three ways.” [p.12] They are:

  • “First, the plaintiff ’s choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted.” [p.13]
  • “Second, a court evaluating a defendant’s § 1404(a) mo­tion to transfer based on a forum-selection clause should not consider arguments about the parties’ private inter­ests…. As a consequence, a district court may consider argu­ments about public-interest factors only.” [pp.13-14]
  • “Third, when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue’s choice-of-law rules.” [p.14]

Footnote 8 states that “the same standards should apply to should apply to motions to dismiss for forum non conveniens in cases involving valid forum-selection clauses pointing to state or foreign forums.”

The Court ultimately reverses the Fifth Circuit, but it remands for further proceedings: “Although no public-interest factors that might support the denial of Atlantic Marine’s motion to transfer are apparent on the record before us, we remand the case for the courts below to decide that question.” [p.17]

December 3, 2013 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)