Civil Procedure & Federal Courts Blog

Supreme Court Dismisses IndyMac Case on Statute of Limitations in Class Actions

SCOTUSblog reports that the Court dismissed the writ of certiorari in Public Employees' Retirement System v. IndyMac MBS, Inc. as improvidently granted.   The issue in the case was whether the filing of a putative class action serves, under American Pipe & Construction Co. v. Utah, to satisfy the three year time limitation in § 13 of the Securities Act with respect to the claims of putative class members.

The Court was set to hear argument in the case on Monday, but became aware of a pending settlement proposal.

 

 

Freer on the New General Jurisdiction

Rich Freer (Emory) has posted on SSRN a draft of his article, Four Specific Problems with the New General Jurisdiction, which will be published in the Nevada Law Journal. Here’s the abstract:

General in personam jurisdiction allows a court to enter judgment against a defendant regarding a claim that did not arise in the forum. Traditionally, based upon International Shoe (1945), courts have exercised general jurisdiction over corporations based upon their "continuous and systematic" activities in the forum. In Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) and Daimler AG v. Bauman (2014), the Supreme Court has restricted general jurisdiction by making it available only where the defendant is "at home" (a notion apparently never adopted by any state court as a proxy for general jurisdiction). 

Goodyear and Daimler were easy cases. The lower courts' exercise of general jurisdiction in each was risible. Instead of simply reversing the efforts, the Court decided several issues it did not need to decide and upset accepted understanding of activities-based general jurisdiction. Because the Court has never explained why we have general jurisdiction, it failed to explain why the new restriction is needed or appropriate. 

This article focuses on four specific problems created by the new jurisprudence: (1) the Court unnecessarily prohibits general jurisdiction based upon sales into a forum, which will hamper growth of jurisdictional doctrine in Internet cases; (2) by ignoring corporate activities, the Court ignores the sorts of corporate contact that would be analogous to human domicile, which, the Court says, is the paradigm of "at home"; (3) by rendering activities-based general jurisdiction practically impossible and (4) by inexplicably jettisoning the "fairness factors" of International Shoe in general jurisdiction cases, the Court exacerbates its parsimonious view of specific jurisdiction by denying judicial access to American plaintiffs injured by foreign corporations. 

Though some restriction of general jurisdiction may have been appropriate, it should have been measured and well-tailored to the underlying purpose of general jurisdiction. The Court's recent effort is not.

 

 

Judicial Conference Passes Proposed FRCP Amendments

The National Law Journal reports that the Judicial Conference passed the proposed amendments to the Federal Rules of Civil Procedure today.  The amendments next to go the Supreme Court for approval.

Proposed Rule 37(e): Failure to Preserve Electronically Stored Information

I mentioned yesterday that the proposed FRCP amendments include all three top priorities of the defense-oriented "Lawyers for Civil Justice," as stated on its web site:

LCJ’s . . . current federal rulemaking agenda is focused on . . . 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.

The proposed amendment to Rule 37(e) covers the first of the items on the LCJ's wish list.

The current version of Rule 37(e), adopted in 2006, provides a narrow safe harbor that prohibits sanctions for the loss of information due to "the routine, good-faith operation of an electronic information system," such as document-destruction policies adopted without regard to particular litigation.  The recently-revised proposed amendment to Rule 37(e) omits the existing explicit safe harbor and overhauls the earlier published-for-comment version of the proposal:

Rule 37.  Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

* * *

(e) Failure to Preserve Provide Electronically Stored Information.  Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.  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.

Notice how many obstacles a party seeking ESI would have to surmount to obtain relief for the failure of the responding party to preserve ESI.  First, the court will have to find that the duty to preserve was triggered before the information was lost.  Second, the court will have to find that the responding party failed to take reasonable steps to preserve the ESI.  Third, the court will have to find that the lost ESI "cannot be restored or replaced through additional discovery."  (By definition, the ESI is lost, so it is unclear to me how the seeking party would know with certainty that "additional discovery" could restore or replace the missing information.)

At that point, the court will have found that (1) the responding party failed to take reasonable steps to preserve (2) irreplaceable ESI (3) after a duty to preserve had been triggered.  Still, the court is not required to impose any curative measures or sanctions on the responding party without additional findings.  The court "may" take one of two paths:

• if it makes the additional finding that the seeking party was "prejudiced" from the loss of the ESI, the court may order "measures no greater than necessary to cure the prejudice," OR
• if it makes the additional finding that the responding party "acted with the intent to deprive another party of the information’s use in the litigation," it may order more serious sanctions, such as an adverse inference jury instruction or default judgment.

In the draft of Rule 37(e) that was published for comment in August 2013, the drafters allowed the court to order both "curative measures" and "sanctions."  In the draft that was approved, it appears that the court may order either curative measures or sanctions. 

As to sanctions, the LCJ, like many others, advocated "a national and uniform spoliation sanction approach" in light of differing mens rea requirements adopted by different courts, including negligence, gross negligence, and willfulness.  A uniform standard would indeed be useful, but a specific "intent to deprive another party of the information's use in the litigation" is the toughest standard to prove that the Advisory Committee could have adopted. 

 

Third Circuit Oral Argument Held in GlaxoSmithKline Diversity Case

We've been following GlaxoSmithKline's re-removal, more than 12 months after filing, of several personal injury cases after the Third Circuit held that a ten-by-ten foot subleased office made Delaware the principal place of business of a GlaxoSmithKline holding company.  (See here and here.)

The Third Circuit, which previously allowed an interlocutory appeal, held oral argument in the case yesterday.  Howard Bashman, of the How Appealing blog, argued for the plaintiffs in the case.

Hat tip: Howard Bashman

 

"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

	Federal judge type	Chair of this Committee	Appointed by this president	Known affiliation with Federalist Society or LCJ?	Supreme Court clerkship
Jeffrey S. Sutton	Appeals	Standing	G.W. Bush	Yes	Scalia
Steven M. Colloton	Appeals	Appellate	G.W. Bush	Yes
Eugene R. Wedoff	Bankruptcy	Bankruptcy	N/A	No
David G. Campbell	District	Civil	G.W. Bush	Yes	Rehnquist
Reena Raggi	Appeals	Criminal	G.W. Bush	Yes
Sidney A. Fitzwater	District	Evidence	Reagan	No

 

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."               

 

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." 

Abstract:

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."

 

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.

Abstract:     

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.

 

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.

APPENDIX OF FORMS

[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.

 

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.

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. 

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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, 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).

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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.

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