Thursday, September 4, 2014
In this post, I address the other rules changes that allegedly address the Advisory Committee's goal of "early and active judicial case management." In earlier posts, I described the proposed amendment to Rule 4(m), which will reduce by 30 days (from 120 days to 90 days) the time within which the plaintiff must serve process on the defendant, and the proposed amendment to Rule 16(b)(2), which will reduce by 30 days the time within which the judge must issue the scheduling order in the case.
These two fairly arbitrary reductions in deadlines early in the proceedings constitute the only mandatory aspects of "early and active judicial case management" in the proposed amendments. Arguably, a judge who is simply required to enforce and comply with two new fixed deadlines is not "actively managing" a case in the way that I think supporters of the "judicial management" concept intended – but put that aside for a moment. What are the rest of the rules changes intended to improve judicial management? They come down to two changes.
First, the proposed amendments would add to Rule 16(b)(3)(B) three new items to the laundry list of topics that a judge may include (but is not required to include) in the scheduling order. (Never mind that Rule 16(b)(3)(B) already allows judges to include these topics.) Second, under the proposed amendments, the judge is still not required to hold a scheduling conference with the parties. But if, in her discretion, she decides to consult with the parties before issuing the scheduling order, the proposed amendments will eliminate her ability to consult with them "by mail."
Folks, I'm boring myself even writing about these particular amendments. I can understand if you've already closed your browser on this. But in case you're one of the three or four people who might still be reading about the proposed amendments to Rule 16(b), here's more detail.
Rule 16(b)(1) currently requires the judge to issue a scheduling order early in the litigation. The only items that the rules currently require the judge to include in the scheduling order are limits on "the time to join other parties, amend the pleadings, complete discovery, and file motions." The proposed amendments do not add any "required" items to the scheduling order.
Instead, the proposal would add items to the "permitted contents" of the scheduling orders. Thus, the amended Rule 16 will suggest, but not require, that the judge may, if she wishes, include in the scheduling order the preservation of electronically stored information, the parties' agreement regarding the nonwaiver of privilege under Federal Rule of Evidence 502, and a requirement that the parties seek a court conference before filing a discovery motion:
(3) Contents of the Order. * * *
(B) Permitted Contents. The scheduling order may: * * *
(iii) provide for disclosure, or discovery, or preservation of electronically stored information;
(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502;
(v) direct that before moving for an order relating to discovery, the movant must request a conference with the court . . .
There is nothing really wrong with any of this, but Rule 16 already allows the judge to include all these items, and many judges already do so. The existing six subparagraphs of Rule 16(b)(3)(B) already permit the scheduling order to "provide for disclosure or discovery of electronically stored information"; "to modify the extent of discovery"; to include no-privilege-waiver agreements; and to "include other appropriate matters." Thus, the existing rule fully covers all of the proposed additions.
In fact, Judge Paul Grimm, an Advisory Committee member, has a standard Discovery Order that includes all these things and more. In particular, Judge Grimm's discovery order requires a pre-motion request for a conference on a discovery dispute. But the proposed amendments do not mandate that judges require pre-discovery-motion conferences.
The second proposed change to Rule 16(b) is:
(1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge — or a magistrate judge when authorized by local rule — must issue a scheduling order:
(A) after receiving the parties’ report under Rule 26(f); or
The Advisory Committee explains that "[a] scheduling conference is more effective if the court and parties engage in direct simultaneous communication." The problem is that the change does nothing to require the judge to actually have a scheduling conference with the parties: the judge is still free to issue the scheduling order without conferencing with the parties. If "direct simultaneous communication" (and "early and active judicial management") is what is desired, a better change might be to replace the "or" at the end of 16(b)(1)(A) with "and."
Finally, it is probably not even worth mentioning this, but there appears to be a very slight error in the Committee's transcription of Rule 16(b)(1)(B): it omits the word "or" that I have inserted in brackets in the quote above. In other words, the current phrase in Rule 16(b)(1)(B) actually reads "a scheduling conference or by telephone, mail, or other means," which sounds more sensible than "a scheduling conference by . . . mail."
My next post in this series will be about the proposed amendments narrowing the scope of discovery. I promise it will be more interesting.
 Adv. Comm. Rep. May 2, 2014, at 18.