Monday, September 8, 2014
Proposed Amendments to Rules 30, 31, and 33: New Limits on Scope of Discovery Applied to Depositions and Interrogatories
My series of posts on the proposed FRCP amendments to be voted on by the Judicial Conference next week continues with Rules 30, 31, and 33.
In the amendments published for comment in August 2013, the Committee had originally proposed to halve the allowed number of depositions from ten to five; reduce the allowed duration of a deposition from seven hours to six; reduce the allowed number of interrogatories from twenty-five to fifteen; and limit requests to admit for the first time ever to twenty-five.
Following what the Committee called "fierce resistance," it withdrew these reductions in presumptive limits. The proposed amendments as passed by the Advisory Committee and the Standing Committee no longer contain these new limitations.
However, in the event that Rule 26(b)(1) is amended in the four ways I outlined in my previous two posts to narrow discovery, the Committee has added a cross-reference to 26(b)(1) into Rules 30, 31, and 33. For example, here is the proposed amendment to Rule 30 (similar changes are proposed to Rules 31 and 33):
Rule 30. Depositions by Oral Examination
(a) When a Deposition May Be Taken. * * *
(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2):
(A) if the parties have not stipulated to the deposition and:
(i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants.
* * *
(d) Duration; Sanction; Motion to Terminate or Limit.
(1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours. The court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.
Thus, if the scope of discovery is narrowed under 26(b)(1) (for example, by eliminating the judge's ability to order discovery relevant to the subject matter involved in the case), then parties resisting discovery will have more arguments against increasing the presumptive number of depositions and interrogatories or the presumptive length of a deposition.
Sunday, September 7, 2014
In my last post, I addressed one of the proposed amendments to the FRCP that limits the scope of discovery: moving the so-called "proportionality" factors from their current place in Rule 26(b)(2)(C) as a court-imposed limitation on discovery to a place in Rule 26(b)(1) as an element defining the general scope of discovery.
The proposed amendments will also banish three other venerable phrases from Rule 26(b)(1):
- They will eliminate the court's ability to broaden the general scope of discovery to "any matter relevant to the subject matter involved in the action."
- They delete the statement that the scope of permissible inquiry includes information about the existence and location of documents and the identity of witnesses; and
- They delete the phrase that information sought in discovery does not need to be admissible in evidence if it "appears reasonably calculated to lead to the discovery of admissible evidence."
The unmistakable intent of this overhaul of Rule 26(b)(1) is to allow less discovery, no matter how much the Advisory Committee protests that these changes will have no effect on current practice.
Friday, September 5, 2014
The changes proposed to the scope of discovery center around the third "theme" of the 2010 Duke Conference: proportionality. The proposed contraction of the scope of discovery under Rule 26(b) incited the most passionate public opposition of all the amendments. (For background given in earlier posts, click here, here, here, and here.)
The Advisory Committee's Report to the Chief Justice on the Duke Conference stated plainly that "there was no demand at the Conference for a change to the [26(b)(1)] rule language [on scope]; there is no clear case for present reform." Despite this, the proposed amendments will overhaul Rule 26(b)(1):
(b) Discovery Scope and Limits.
(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
(2) Limitations on Frequency and Extent.
* * *
(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: * * *
(iii) the burden or expense of the proposed discovery is outside the scope permitted by Rule 26(b)(1) outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
Breaking it down, these amendments will narrow and limit the scope of discovery in four ways:
- They will make so-called "proportionality" an element defining the general scope of discovery, rather than a court-imposed limitation on discovery that is otherwise within the general scope.
- They will eliminate the court's ability to broaden the general scope of discovery to "any matter relevant to the subject matter involved in the action."
- They delete as "clutter" a statement, which has been in 26(b) since 1946 (although back then, it applied only to depositions), that the scope of permissible inquiry includes information about the existence and location of documents and the identity of witnesses; and
- They delete, as misunderstood, another phrase that has been in Rule 26(b) since 1946: that information sought in discovery does not need to be admissible in evidence if it "appears reasonably calculated to lead to the discovery of admissible evidence."
In this post, I will discuss the proposed move of "proportionality" from its current position as a limitation on discovery in 26(b)(2)(C) to part of the definition of the scope of discovery in 26(b)(1).
Thursday, September 4, 2014
In this post, I address the other rules changes that allegedly address the Advisory Committee's goal of "early and active judicial case management." In earlier posts, I described the proposed amendment to Rule 4(m), which will reduce by 30 days (from 120 days to 90 days) the time within which the plaintiff must serve process on the defendant, and the proposed amendment to Rule 16(b)(2), which will reduce by 30 days the time within which the judge must issue the scheduling order in the case.
These two fairly arbitrary reductions in deadlines early in the proceedings constitute the only mandatory aspects of "early and active judicial case management" in the proposed amendments. Arguably, a judge who is simply required to enforce and comply with two new fixed deadlines is not "actively managing" a case in the way that I think supporters of the "judicial management" concept intended – but put that aside for a moment. What are the rest of the rules changes intended to improve judicial management? They come down to two changes.
First, the proposed amendments would add to Rule 16(b)(3)(B) three new items to the laundry list of topics that a judge may include (but is not required to include) in the scheduling order. (Never mind that Rule 16(b)(3)(B) already allows judges to include these topics.) Second, under the proposed amendments, the judge is still not required to hold a scheduling conference with the parties. But if, in her discretion, she decides to consult with the parties before issuing the scheduling order, the proposed amendments will eliminate her ability to consult with them "by mail."
Folks, I'm boring myself even writing about these particular amendments. I can understand if you've already closed your browser on this. But in case you're one of the three or four people who might still be reading about the proposed amendments to Rule 16(b), here's more detail.
Saturday, August 30, 2014
Continuing my ongoing review of the proposed amendments to the Federal Rules of Civil Procedure currently pending before the Judicial Conference of the United States, I move on to one of the changes proposed to Rule 16: the shortening by 30 days of the time for the court to issue a scheduling order. As noted in my last post, the time within which the plaintiff must serve process on the defendant has also been shortened by 30 days.
The cumulative effect is that the scheduling order will potentially issue 60 days earlier than it does now. The hypothetical effect of the proposed changes in scheduling is illustrated in the table below.
Tuesday, August 26, 2014
In my intended continuing series reviewing the proposed amendments to the Federal Rules of Civil Procedure currently pending before the Judicial Conference of the United States, I move on to Rule 4(m). For background, see my earlier post here.
The proposed change to Rule 4(m) is:
(m) Time Limit for Service. If a defendant is not served within 120 90 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).
The Advisory Committee had originally proposed a reduction of the time within which plaintiff must serve process from 120 days to 60 days, but after public comment, it split the difference at 90 days.
Sunday, August 24, 2014
The controversial proposed amendments to the Federal Rules of Civil Procedure that were first published for comment in August 2013, somewhat modified after vociferous public comment, and approved by the Advisory Committee and the Standing Committee, are making their way to a vote by the full Judicial Conference at its meeting in September.
I thought it might be useful to review the proposals, a bit at a time, here. Needless to say, my comments are my own and I do not speak for any of my co-editors or the Law Professor Blogs Network. As I noted earlier on this blog, I submitted written comments in opposition to the amendments.
Since the 2010 Duke Conference, the Advisory Committee has repeated the mantra "that the disposition of civil actions could be improved, reducing cost and delay, by advancing cooperation among the parties, proportionality in the use of available procedures, and early and active judicial case management." (May 2014 Advisory Committee Report to the Standing Committee.)
Taking the "advancing cooperation" objective first, the only rule change that supposedly addresses this is the following addition to Rule 1:
These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. [Proposed deletions from the current rule are struck through; proposed additions to the current rule are underlined.]
Rule 1 remained substantively unchanged from its adoption in 1938 until 1993, when the words "and administered" were inserted into the second sentence after the word "construed." The Advisory Committee Notes explained in 1993 that the addition of those words was "to recognize the affirmative duty of the court to exercise the authority conferred by these rules to ensure that civil litigation is resolved not only fairly, but also without undue cost or delay. As officers of the court, attorneys share this responsibility with the judge to whom the case is assigned." (Adv. Comm. Notes to 1993 Amendments to Rule 1 (emphasis added).) Now, twenty years later, the Advisory Committee apparently feels that attorneys have snubbed this responsibility, and proposes adding a reference to "the parties" in the text of the rule, rather than in the Committee Note.
The newly proposed Committee Note reads in its entirety:
Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way. Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure. [emphasis added]
This amendment does not create a new or independent source of sanctions. Neither does it abridge the scope of any other of these rules.
As you can see, the actual text of the newly proposed rule still does not use any form of the word "cooperation." The use of that word appears only in the proposed Note.
The Committee does not define or give an example of "cooperation," stating only that it means "to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay" -- terms that are not further elaborated. The Committee does not address whether or how this envisioned duty of cooperation is enforceable. It rejects, without explaining why, concerns that the rule change may prompt "ill-founded attempts to seek sanctions for violating a duty to cooperate" or "the strategic use of 'Rule 1 motions.'" (May 2014 Adv. Comm. Rep.)
In its proposed Note, the Advisory Committee has linked "proportional," one of the watchwords of the day, to "cooperation," and admonished lawyers that these are necessary for "effective advocacy." Professor Paul Carrington, who was the Reporter for the Advisory Committee under Chief Justice Warren Burger, spoke at the first public hearing on the proposed amendments in November 2013. He criticized the proposed amendment to Rule 1 as suggesting "that lawyers are supposed to be not too vigorous on behalf of their clients if it would somehow be a pain to the other side." (Nov. Hearing at 60.)
Henry Kelston of Milberg LLP noted in response to a question:
There are genuine cooperators, there are pretend cooperators and then there are parties that don't even pretend to cooperate. And it makes a lot of difference in the way the litigation proceeds, which variety you're working with or against. (Jan. 2014 Hearing at 60-61.)
It seems doubtful that the change to Rule 1 will incentivize the "pretend cooperators" and those "that don't even pretend to cooperate" to change.
Saturday, August 23, 2014
Does the Advisory Committee on Civil Rules ever sleep? A new round of proposed amendments to the Federal Rules of Civil Procedure has been published for comment. These, however, appear to be housekeeping measures, not significant changes to the rules like the currently pending bunch, which go to the Judicial Conference next month.
The three proposed amendments:
Rule 4. Summons * * *
(m) Time Limit for Service. * * * This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1) * * *.
Explanation: "The Committee recommends publication of a clarifying amendment to ensure that service abroad on a corporation is excluded from the time for service set by Rule 4(m)."
Rule 6. Computing and Extending Time; Time for Motion Papers * * *
(d) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served1 and service is made under Rule 5(b)(2)(C)(mail), (D)(leaving with the clerk), (E), or (F)(other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).
Rule 6(d) is amended to remove service by electronic means under Rule 5(b)(2)(E) from the modes of service that allow 3 added days to act after being served.
82. Jurisdiction and Venue Unaffected
These rules do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts. An admiralty or maritime claim under Rule 9(h) is governed by 28 U.S.C. § 1390 not a civil action for purposes of 28 U.S.C. §§ 1391-1392.
Rule 82 is amended to reflect the enactment of 28 U.S.C. § 1390 and the repeal of § 1392.
Comments are due by February 17, 2015. Hearings on the civil rules will be held in Washington, D.C., on October 31, 2014, and in Phoenix, Arizona, on January 9, 2015.
Thursday, August 14, 2014
Echoing the May 2, 2014 Report to the Standing Committee by the Advisory Committee on Civil Rules, the chair of the Advisory Committee, Judge David G. Campbell, has signaled that he would adopt the position of the proposed change to FRCP 37(e). Vicente v. City of Prescott, No. CV–11–08204–PCT–DGC (D. Ariz. Aug. 8, 2014), 2014 WL 3894131.
The proposed amendment to Rule 37(e) provides:
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court may:
(1) upon finding prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Thus, the proposal rejects cases that permit an adverse inference instruction on a showing of negligence or gross negligence. As the Advisory Committee reported to the Standing Committee:
Circuits that permit adverse inference instructions on a showing of negligence or gross negligence adopt [the] rationale . . . that the adverse inference restores the evidentiary balance, and that the party that lost the information should bear the risk that it was unfavorable. See, e.g., Residential Funding Corp. v. DeGeorge Finan. Corp., 306 F.3d 99 (2d Cir. 2002). Although this approach has some logical appeal, the Advisory Committee has several concerns with this approach when applied to ESI. First, negligently lost information may have been favorable or unfavorable to the party that lost it. Consequently, an adverse inference may do far more than restore the evidentiary balance; it may tip the balance in ways the lost evidence never would have. (click here and go to page 314)
In Vicente, Judge Campbell stated that "the Court tends to believe that such an instruction requires a showing of bad faith," although the case did not require a decision on the point. (n. 10) Footnote 10 goes on to use the sentences quoted above almost verbatim, but without attribution.
Tuesday, June 17, 2014
In the continuing worldwide drama over Argentina's 2001 debt default, Argentina loses another round. Republic of Argentina v. NML Capital, Ltd., No. 12-842 (U.S. June 16, 2014). Its creditor, NML Capital, which Argentina owes about $2.5 billion, has pursued postjudgment execution on Argentina's property since 2003. In 2010, NML subpoenaed two nonparty banks, Bank of America and an Argentinian bank with a branch in New York City. The subpoenas sought documents relating to accounts maintained by Argentina.
Argentina and BoA moved to quash the BoA subpoena (the Argentinian bank just didn't comply), and NML moved to compel. The district court granted the motion to compel, and the Second Circuit affirmed.
The Supreme Court also affirmed, rejecting Argentina's argument that the Foreign Sovereign Immunities Act prohibited discovery of Argentina's extraterritorial assets. Before its discussion of the FSIA, the Court discussed a Federal Rule of Civil Procedure -- Rule 69 -- that is rarely, if ever, mentioned in first-year civil procedure casebooks. (Hint, hint, casebook authors!) The Court noted that "[t]he rules governing discovery in postjudgment execution proceedings are quite permissive," citing Rule 69(a)(2), which allows a judgment creditor to take discovery "from any person -- including the judgment debtor -- as provided in the rules or by the procedure of the state where the court is located." The Court assumed without deciding that "in a run-of-the-mill execution proceeding [one where the judgment debtor is not a foreign state] . . . the district court would have been within its discretion to order the discovery from third-party banks about the judgment debtor's assets located outside the United States."
The question was thus whether the FSIA required a different result when the judgment debtor was, in fact, a foreign state. The FSIA, passed in 1976, confers two kinds of immunity on foreign states, jurisdictional (which Argentina waived) and execution immunity, which immunizes property in the United States of a foreign state from attachment and execution, with some exceptions.
"There is no third provision forbidding or limiting disocvery in aid of execution of a foreign-sovereign judgment debtor's assets," notes Justice Scalia for the majority. "[T]he reason for these subpoenas is that NML does not yet know what property Argentina has and where it is, let alone whether it is executable under the relevant jurisiction's law." The Court also dismissed concerns about international relations, suggesting that such an argument was better addressed to Congress.
Justice Ginsburg dissented. Justice Sotomayor took no part.
Saturday, June 7, 2014
The Standing Committee met on May 29-30, 2014 in D.C. and unanimously approved the amendments as they were modified by the Advisory Committee at its meeting in April.
Hat tip: Center for Constitutional Litigation
Wednesday, May 28, 2014
Tired of using Mosley v. General Motors for an illustration of joinder under Rule 20? The D.C. Circuit has provided a great new case. The court quaintly began its opinion:
Generally speaking, our federal judicial system and the procedural rules that govern it work well, allowing parties to resolve their disputes with one another fairly and efficiently. But sometimes individuals seek to manipulate judicial procedures to serve their own improper ends. This case calls upon us to evaluate—and put a stop to— one litigant’s attempt to do just that.
AF Holdings, LLC v. Does 1-1058, No. 12-7135 (D.C. Cir. May 27, 2014).
Plaintiff AF Holdings, represented by a law firm related to one that was called a "porno-trolling collective" in another case, allegedly (there was some question of forgery) acquired the copyright to a pornographic film called "Popular Demand." It sued 1,058 "John Doe" defendants in federal court in D.C. for copyright infringement for downloading the film on a file-sharing service known as BitTorrent.
Moving for leave to take immediate discovery, AF Holdings then sought to serve subpoenas on the five Internet service providers linked to the 1,058 IP addresses it had identified: Cox Communications, Verizon, Comcast, AT&T, and Bright House Networks. The district court granted the motion . . . . The providers refused to comply. Invoking Federal Rule of Civil Procedure 45(d)(3)(A), . . . they asserted that the administrative expense involved was necessarily an “undue burden” because AF Holdings had failed to establish that the court would have personal jurisdiction over the defendants or that venue would lie in this district. . . . The providers also argued that any burden was necessarily undue because AF Holdings had failed to provide any reason to think that joinder of these 1,058 defendants in one action was proper. The district court rejected these arguments, . . . [but] certified its order for immediate appeal.
The D.C. Circuit vacated, holding that AF Holdings had failed to make a threshold showing of a good faith belief that the discovery would enable it to show that the court had personal jurisdiction over the unknown defendants; thus, the information sought from the service providers was not relevant.
The court then turned "to the question of joinder, which provides a separate and independent ground for reversal":
. . . Federal Rule of Civil Procedure 20(a)(2) sets forth that multiple defendants may be joined in one action if the plaintiff seeks relief “with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and “any question of law or fact common to all defendants will arise in the action.” In a multi-Doe copyright infringement lawsuit such as this, at least one issue of law or fact will generally be common to all defendants—here, that issue might be whether AF Holdings has a valid copyright in Popular Demand. But whether all of these Doe defendants could possibly have been a part of the same “transaction, occurrence, or series of transactions or occurrences” so as to support joinder is a more difficult question. . . . For purposes of this case, we may assume that two individuals who participate in the same swarm [a type of peer-to-peer file sharing] at the same time are part of the same series of transactions within the meaning of Rule 20(a)(2). In that circumstance, the individuals might well be actively sharing a file with one another, uploading and downloading pieces of the copyrighted work from the other members of the swarm. But AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time.
The D.C. Circuit left the question of sanctions to the district court on remand.
Monday, April 28, 2014
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.
Wednesday, April 16, 2014
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
Wednesday, April 9, 2014
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.
Thursday, April 3, 2014
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.
Tuesday, April 1, 2014
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.
Wednesday, March 26, 2014
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).
Tuesday, March 25, 2014
Monday, February 24, 2014