Friday, September 16, 2016
Wednesday, September 14, 2016
Yesterday the U.S. Court of Appeals for the Third Circuit issued its decision in In re: Modafinil Antitrust Litigation. The court addresses Rule 23(a)(1), which provides that to certify a class action the class must be “so numerous that joinder of all members is impracticable.”
From the opinion’s introduction:
When thinking of a class action brought under Rule 23(b)(3), we typically think of a large aggregation of individuals (hundreds or even thousands), each with small claims. This case is quite different from that. Here, we are faced with a putative class of twenty-two large and sophisticated corporations, most of which have multi-million dollar claims, who wish to take advantage of the class action device. While we do not foreclose the possibility of class status in this case, or where the putative class is of similar composition, Plaintiffs have not met their burden of showing that the numerosity requirement of Rule 23(a)(1) has been satisfied. We now provide a framework for district courts to apply when conducting their numerosity analyses, and we will remand to the District Court to allow such an analysis in this case.
Wednesday, September 7, 2016
In April 2016, the U.S. Supreme Court adopted amendments to Rules 4, 6, and 82 of the Federal Rules of Civil Procedure. These amendments would:
(1) add to the last sentence of Rule 4(m) a clarification that Rule 4(m)’s 90-day deadline for serving process does not apply to service in a foreign country under Rule 4(h)(2);
(2) amend Rule 6(d) to remove service by electronic means from the modes of service that allow 3 added days to act after being served; and
(3) amend Rule 82 to reflect the 2011 legislation enacting 28 U.S.C. § 1390 and repealing § 1392.
Unless Congress intervenes, these amendments will go into effect on December 1, 2016.
Last week, Sixth Circuit Judge Jeffrey Sutton, who chairs the Standing Committee, sent the following letter to Vice President Joe Biden (who in that capacity is also President of the U.S. Senate) and to Speaker of the House Paul Ryan:
The letter addresses an issue regarding the 2015 and 2016 amendments to Rule 4(m). The final text of the amendment that the Supreme Court adopted in April 2016 omitted language that had been added in 2015, which instructed that Rule 4(m)’s 90-day deadline for serving process does not apply to “service of a notice under Rule 71.1(d)(3)(A).” The omission appears to have been inadvertent—that language was not stricken in the redlined version of the 2016 amendment, nor was it referred to in the advisory committee note for the 2016 amendment.
Judge Sutton writes that, despite the omission, the “net effect” of the 2015 and 2016 amendments would include language regarding both Rule 4(h)(2) and Rule 71.1(d)(3)(A) in the last sentence of Rule 4(m). He concludes:
[I]f the current amended rule pending before Congress goes into effect on December 1, 2016, it henceforward will read:
“This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).”
Last week the U.S. Court of Appeals for the Eighth Circuit issued its decision in In re: Missouri Department of Corrections. The case involves a subpoena that two Mississippi death row inmates served on the Missouri Department of Corrections (MDOC) seeking discovery relating to Missouri’s use of pentobarbital in lethal injections, including the identities of its pentobarbital suppliers. The inmates are challenging Mississippi’s execution method (which does not use pentobarbital) as violating the Eighth Amendment.
MDOC moved to quash the subpoena, but the district court in Missouri denied the motion and ordered MDOC to produce most of the information sought by the inmates. The Eighth Circuit has now denied MDOC’s request for a writ of mandamus challenging that order. It’s a short six-page opinion, but it covers a lot of ground—from appellate mandamus, to whether a subpoena creates an undue burden under FRCP 45(d)(3)(A)(iv), to sovereign immunity, to the state secrets privilege.
Monday, August 29, 2016
Last week the U.S. Court of Appeals for the Second Circuit issued its decision in Nicosia v. Amazon.com, Inc., holding that the plaintiff’s suit against Amazon should not be dismissed for failure to state a claim based on the mandatory arbitration provision in Amazon’s Conditions of Use.
Of course there’s considerable discussion of the Federal Arbitration Act and substantive contract law, but the court also addresses pleading standards, the relationship between Rule 12(b)(6) motions and motions to compel arbitration, and standing (the latter with respect to the plaintiff’s request for a preliminary injunction).
Friday, August 19, 2016
Today U.S. District Judge Emmet Sullivan issued an opinion in Judicial Watch v. U.S. Department of State, a FOIA case seeking employment records relating to Huma Abedin, long-time aide to Hillary Clinton. In connection with the plaintiff’s request for discovery under FRCP 56(d), the court ordered that the plaintiff may serve interrogatories on Hillary Clinton but could not depose her.
From the opinion:
The Court directs Judicial Watch to propound questions that are relevant to Secretary Clinton’s unique first-hand knowledge of the creation and operation of clintonemail.com for State Department business, as well as the State Department’s approach and practice for processing FOIA requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails and State’s processing of the FOIA request that is the subject of this action.
Friday, August 12, 2016
The Committee on Rules of Practice and Procedure has published proposed amendments to the Federal Rules of Civil Procedure (along with proposed amendments to the Appellate, Bankruptcy & Criminal Rules). The proposed FRCP amendments include—among other things—changes to Rule 23’s provisions on class actions.
The comment period runs until February 15, 2017. Comments on the FRCP amendments can be submitted here.
In addition, the Civil Rules Committee will be holding the following public hearings:
- Washington, DC on November 3, 2016
- Phoenix, AZ on January 4, 2017
- Dallas/Ft. Worth, TX on February 16, 2017
Just Published: The Sedona Conference Commentary on Rule 34 and Rule 45 "Possession, Custody, or Control"
The Sedona Conference has issued its final Commentary on Rule 34 and Rule 45 "Possession, Custody, or Control." 17 Sedona Conf. J. ____ (forthcoming 2016).
From the Abstract:
Rule 26(a) of the Federal Rules of Civil Procedure allows for the discovery of “documents, electronically stored information, and tangible things” in the responding party’s “possession, custody, or control.” Similarly, Rule 34(a) and Rule 45(a) obligate a party responding to a document request or subpoena to produce “documents, electronically stored information, and tangible things” in that party’s “possession, custody, or control.” Yet, the Rules are silent on what the phrase “possession, custody, or control” means. Therefore, parties must look to case law for a definition. Unfortunately, the case law across circuits (and often within circuits themselves) is unclear and, at times, inconsistent as to what is meant by “possession, custody, or control,” resulting in a lack of reliable legal—and practical—guidance. The inconsistent interpretation and application of Rules 34 and 45 in this context are especially problematic because parties remain absolutely responsible for preserving and producing information within their “possession, custody, or control” and face material consequences, including sanctions, for their failure to do so.
. . . .
This Commentary is intended to provide practical, uniform, and defensible guidelines regarding when a responding party should be deemed to have “possession, custody, or control” of documents and all forms of electronically stored information (hereafter, collectively referred to as “Documents and ESI”) subject to Rule 34 and Rule 45 requests for production. A secondary, corollary purpose of this Commentary is to advocate abolishing use of the common‐law “Practical Ability Test” for purposes of determining Rule 34 and Rule 45 “control” of Documents and ESI. Simply stated, this common‐law test has led to inequitable situations in which courts have held that a party has Rule 34 “control” of Documents and ESI even though the party did not have the actual ability to obtain the Documents and ESI. Therefore, this Commentary recommends that courts should interpret and enforce Rule 34 “possession, custody, or control” obligations in ways that do not lead to sanctions for unintended and uncontrollable circumstances. To support that recommendation, this Commentary also looks to several well‐established legal doctrines upon which to model the contemporary scope of a party’s duty to identify, preserve, and collect Documents and ESI, such as reliance upon a modified version of the business judgment rule. Helping resolve the disparity among circuits to bring a uniform, national standard to this important area of the law is consistent with Sedona’s mission of moving the law forward in a just and reasoned way.
Here are "THE SEDONA CONFERENCE PRINCIPLES ON POSSESSION, CUSTODY, OR CONTROL":
Principle 1: A responding party will be deemed to be in Rule 34 or Rule 45 “possession, custody, or control” of Documents and ESI when that party has actual possession or the legal right to obtain and produce the Documents and ESI on demand.
Principle 2: The party opposing the preservation or production of specifically requested Documents and ESI claimed to be outside its control, generally bears the burden of proving that it does not have actual possession or the legal right to obtain the requested Documents and ESI.
Principle 3(a): When a challenge is raised about whether a responding party has Rule 34 or Rule 45 “possession, custody, or control” over Documents and ESI, the Court should apply modified “business judgment rule” factors that, if met, would allow certain, rebuttable presumptions in favor of the responding party.
Principle 3(b): In order to overcome the presumptions of the modified business judgment rule, the requesting party bears the burden to show that the responding party’s decisions concerning the location, format, media, hosting, and access to Documents and ESI lacked a good faith basis and were not reasonably related to the responding party’s legitimate business interests.
Principle 4: Rule 34 and Rule 45 notions of “possession, custody, or control” should never be construed to override conflicting state or federal privacy or other statutory obligations, including foreign data protection laws.
Principle 5: If a party responding to a specifically tailored request for Documents or ESI (either prior to or during litigation) does not have actual possession or the legal right to obtain the Documents or ESI that are specifically requested by their adversary because they are in the “possession, custody, or control” of a third party, it should, in a reasonably timely manner, so notify the requesting party to enable the requesting party to obtain the Documents or ESI from the third party. If the responding party so notifies the requesting party, absent extraordinary circumstances, the responding party should not be sanctioned or otherwise held liable for the third party’s failure to preserve the Documents or ESI.
Friday, July 29, 2016
Lou Mulligan and Glen Staszewski have posted on SSRN a draft of their article, Civil Rules Interpretive Theory. Here’s the abstract:
We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach so often forwarded by the Supreme Court. We turn next to the two alternative interpretive approaches to the Rules in the nascent scholarly literature. We reject the inherent authority model, which views the Court as an unconstrained policymaker in Rules cases, as failing to respect rule-of-law values. We also decline to adopt the regime-specific purposive model because it fails to recognize that the Court faces a question of policymaking form in Rules cases and disregards the institutional advantages provided by the court rulemaking process. Rather, we advocate for an administrative-law model of Rules interpretation that respects the rule of law and promotes the institutional advantages appertaining to purposive textual interpretation by the high court, Advisory Committee policy setting, and lower court application of discretion.
Friday, July 15, 2016
Richard Briles Moriarty, Assistant Attorney General, State of Wisconsin, has published in the American Journal of Trial Advocacy, 39 Am. J. Trial Advoc. 227 (2015) (available on Westlaw), his article, And Now for Something Completely Different: Are the Federal Civil Discovery Rules Moving Forward into A New Age or Shifting Backward into A "Dark" Age?
This Article examines the 2015 Amendments to the Federal Rules of Civil Procedure. The author explains the purposes behind the Rules historically, identifies major changes made in 2015, and analyzes why the 2015 Rule changes are fundamentally unacceptable. The author concludes by discussing the troublesome committee appointment process that underlies the 2015 changes and proposing an appointment process consistent with the check-and-balance views of the Founders, which, among other benefits, could ultimately restore fair and useful discovery rules to the civil litigation system.
Tuesday, June 28, 2016
How the Current Version of Rule 5 Frustrates Public Access to Discovery in the “Trump University” Lawsuit and Other Cases
Most people know by now that Cohen v. Donald Trump, No. 3:13-cv-02519, is a class action in federal court in San Diego alleging that Trump University defrauded thousands of consumers who purchased real estate courses. What is less widely reported is that the complaint alleges that Donald Trump violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), a federal statute passed in 1970 to make it easier to prosecute members of organized crime – e.g., the Mafia. Specifically, the complaint alleges that Donald Trump violated RICO by conducting Trump University (the alleged criminal enterprise) through a “pattern of racketeering activity” consisting of crimes of mail fraud and wire fraud.
The Discovery Sought by the News Media
What does this have to do with the Federal Rules of Civil Procedure? Well, hang on. One of the latest skirmishes in the case is that major news media organizations (CNN, The Washington Post, CBS, and several others) have moved to intervene for the purpose of modifying the protective order so that the videotaped depositions of Donald Trump taken in the case may be released.
Earlier, the plaintiff tried to file portions of the videos in court as exhibits to his brief opposing Trump’s motion for summary judgment. The court returned the videos to the plaintiff for failing to comply with a court rule. The plaintiff promptly moved to file “a series of electronic files of video excerpts from the depositions of Trump, taken on December 10, 2015, and January 21, 2016.” Trump opposes the motion.
But meanwhile, plaintiff’s motion revealed the existence of two days of depositions of Trump in videotape form, of which plaintiff is only seeking to file a fraction. The putative intervenors (the news media) want it all.
Rule 5 Prohibits the Filing of Discovery in Court Until “Used in the Proceeding”
Perhaps one of the most somnolent of the Federal Rules of Civil Procedure is Rule 5, “Serving and Filing Pleadings and Other Papers.” Since 2000, Rule 5(d)(1) has prohibited the filing in court of discovery requests and responses (including initial disclosures, depositions, interrogatories, requests for documents, and requests for admission). From 1980 to 2000, Rule 5 allowed local courts to prohibit the filing of discovery. (Of course, once a party “uses” the discovery “in a proceeding” – for example, as an exhibit to a summary judgment motion – it must be filed in court.)
In contrast, before 1980, Rule 5 required the filing of discovery – depositions, interrogatories, and so forth – in court. The only reason that was publicly stated for the change to prohibiting the filing of discovery in court was that the copies for filing could be expensive and that the courts did not have enough physical storage space. But now that everything is digital, it would seem that the issues of expense and physical storage space are moot.
Monday, June 20, 2016
Brooke Coleman has posted on SSRN a draft of her article One Percent Procedure, which is forthcoming in the Washington Law Review. Here’s the abstract:
In this election year, political rhetoric about the one percent is already pervasive, as those with the greatest concentrated wealth prosper and the remaining population stagnates. Because of their affluence, the one percent exercise disproportionate control over political and economic systems. This Article argues that federal civil procedure is similarly a one percent regime. The crème de la crème of the bench and bar, along with equally exclusive litigants, often engage in high-stakes, complex civil litigation. It is this type of litigation that dominates both the elite experience and the public perception of what civil litigation is. This litigation is not particularly common, however; while expensive and well known, it is in the minority. Yet this litigation and the individuals engaged in it have an incongruent influence on how the Federal Rules of Civil Procedure and procedural doctrine develop. They create one percent procedure.
This Article interrogates and connects disparate phenomena related to civil litigation, including the recent discovery amendments and the rise of multidistrict litigation. It demonstrates that the elite — those who are deeply steeped in complex, high-stakes litigation — are setting the agenda and determining the rules for how the entire civil litigation game is played. It further argues that the benefits of a one percent procedure system — notably expertise of the participants — are not worth the costs; indeed, that expertise can be detrimental to the design of a civil litigation system.
As in politics and economics, a system that gives too much control to the one percent risks undervaluing and underserving the remaining ninety-nine. Using social and political science, the Article argues that the homogenous policymaking of one percent procedure creates suboptimal results. The Article concludes that the structures giving rise to one percent procedure must be modified and proposes a set of reforms intended to allow the ninety-nine percent representation in, and access to, the process of constructing our shared civil litigation system.
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).