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.

Discovery, Federal Rules of Civil Procedure | Permalink


People who oppose the proposals should offer their own. Or do they deny that the Federal Rules are a failure? The World Justice Project 2014 Rule of Law Index rates the United States in factor 7.1 “People can access and afford civil justice 67th out of 99 countries surveyed. We are tied with Uganda, Mongolia and Kyrgyzstan! How many litigators would advise clients to bring lawsuits for $100,000? And if they did, how much would they predict as recovery—not $100,000. Yet $100,000 is double the national median household income. What kind of legal system can’t do better than that? Ugandan. If our system is so wonderful, why is it that we, alone among modern states (and many less than modern states) do not extend legal aid as a matter of right in civil matters? Americans are not less generous than others, it is just that our system is too expensive for the 99%. There is no need to prove people are abusing the system: the system itself is an abuse. It is denial of the promises of our own declarations of rights from 1776 of “justice and right, freely without sale, fully without any denial, and speedily without delay, according to the law of the land.” Did we mean nothing by all these fine words? Who will pretend that the federal rules “secure the just, speedy, and inexpensive determination of every action and proceeding?”

Posted by: James Maxeiner | Apr 4, 2014 7:49:50 AM

Thanks for your comment, James. I agree with you that access to the courts remains a problem. Greater support for legal aid in civil cases would be a welcome improvement, although obviously that would be outside the scope of the rulemaking process. In my view (as expressed in the letter we filed), the proposed amendments to the FRCP discovery rules would make the access problem worse, not better.

Posted by: Adam Steinman | Apr 4, 2014 8:44:23 AM

Thanks, Adam. I appreciate your work to avoid making matters worse. Change for change’s sake is not a good idea. But major change is needed. As Americans have been saying for a century, we should get away from the competition or sporting theory of civil justice. Today’s post on Dart Cherokee cert suggests that we may soon have a new battlefield: removal. Our courts should be party-friendly. Judges should not umpire contests, but should help parties bring matters before them for decisions of rights according to law. These judges would guide parties to the right courts. They would facilitate making claims plausible. They would keep cases on track by limiting evidence taking, i.e., discovery, to material matters in dispute. They would be present for all evidence taking, as once they were when we still had trials. Parties would cooperate, not so much in scheduling and arranging for production of evidence, but in framing the issues truly in dispute. Judges would make sure all the bases are covered before deciding cases. And, when they decide cases, they would deal with all the arguments in their decisions. This is not fantasy. It is reality in other countries.

Posted by: James Maxeiner | Apr 8, 2014 5:44:15 AM

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