Thursday, September 11, 2014

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

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

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

The proposed amendment is:

26(c)  Protective Orders.

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

* * * * *

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

* * * * *

The accompanying proposed Committee Note is:

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

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

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

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

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

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

Chairpersons of Federal Advisory Committees on Rules of Practice and Procedure





Chair of




by this




with Federalist

Society or LCJ?

Supreme Court clerkship

Jeffrey S. Sutton



G.W. Bush



Steven M. Colloton



G.W. Bush



Eugene R. Wedoff






David G. Campbell



G.W. Bush



Reena Raggi



G.W. Bush



Sidney A. Fitzwater







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

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

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

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


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

Wednesday, September 10, 2014

FJC Researchers Find FRCP Form 11 Seldom Used Even Before Twiqbal

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


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


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


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

Tuesday, September 9, 2014

More Praise for the FRCP Forms

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


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

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

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


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

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

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

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

Rule 84. Forms

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

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


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

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

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

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

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

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

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

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

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

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


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

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.

September 8, 2014 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Sunday, September 7, 2014

More Proposed Limitations on the Scope of Discovery

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. 

Continue reading

September 7, 2014 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Friday, September 5, 2014

FRCP Amendments Will Narrow (Once Again) the Scope of Discovery

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, herehere, 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).

Continue reading

September 5, 2014 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (2)

Thursday, September 4, 2014

The Proposed FRCP Amendments Intended to Foster "Judicial Management"

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.

Continue reading

September 4, 2014 in Federal Rules of Civil Procedure | Permalink | Comments (1)

Saturday, August 30, 2014

Proposed FRCP Amendments Aim to Shorten Deadlines

            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. 

Continue reading

August 30, 2014 in Federal Rules of Civil Procedure | Permalink | Comments (0)

Tuesday, August 26, 2014

A Review of the Proposed Change to FRCP 4(m)

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. 

Continue reading

August 26, 2014 in Federal Rules of Civil Procedure | Permalink | Comments (0)

Sunday, August 24, 2014

A Review of the FRCP Amendments Pending Before the Judicial Conference: Rule 1

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.

August 24, 2014 in Federal Rules of Civil Procedure | Permalink | Comments (0)

Saturday, August 23, 2014

More FRCP Amendments Published for Comment

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).

Committee Note:

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.

Committee Note:

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.


August 23, 2014 in Federal Rules of Civil Procedure | Permalink | Comments (0)

Thursday, August 14, 2014

Chair of Advisory Committee Would Reject Adverse Inference Instruction for Negligent Loss of ESI

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.


August 14, 2014 in Discovery, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Tuesday, June 17, 2014

Supreme Court Allows Subpoenas on Banks With Argentina's Accounts

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.      


June 17, 2014 in Discovery, Federal Rules of Civil Procedure, International/Comparative Law, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Saturday, June 7, 2014

Standing Committee Approves Proposed FRCP Amendments

We've been covering (see here and here, among others) the path of the controversial proposed amendments to the FRCP as they (inexorably, in my view) wend their way toward final approval.

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

June 7, 2014 in Discovery, Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, May 28, 2014

So-Called "Porno Troll's" Attempt at Joinder, Discovery Shot Down

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.

May 28, 2014 in Discovery, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (1)

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)