Tuesday, November 17, 2015

Law Professor Challenges the Seeming Federal Endorsement of Duke Nonbinding “Guidelines” on Proportionality Amendments

When I first read a draft of the Duke Center for Judicial Studies’ "Guidelines and Suggested Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality" (the “Duke Guidelines”), I was confused.  I was aware, of course, that Duke Law School had sponsored the 2010 conference on civil litigation now known commonly as the “Duke Conference,” which spawned the amendments to the Federal Rules of Civil Procedure that, apart from divine intervention, appear certain to go into effect on December 1, 2015.  The dean of Duke Law School is David F. Levi, a former federal district judge who was chair of both the Civil Rules Advisory Committee and the Committee on the Rules of Practice and Procedure (known as the Standing Committee).  The papers that were presented at the Duke Conference are still posted on the official website of the United States courts. 

In 2011, Duke Law School created the Duke Center for Judicial Studies, a primary goal of which was to offer “educational programs for judges.”  In addition, the Center took over the publication of Judicature: The Scholarly Journal for Judges, which is “mailed free of charge to all Article III judges, federal magistrate judges, and state supreme court judges.”           

It seems clear that Duke has positioned itself to appear as a quasi-official body with particular expertise and gravitas in matters of federal litigation.  Even the Advisory Committee on Criminal Rules has met at Duke.

So this summer, as I read a draft of the “Duke Guidelines” regarding the “proportionality” amendment to the FRCP (which will require all discovery to be “proportional to the needs of the case”), I had a lot of questions.  These aren’t binding, are they?  [No.]  Who wrote these?  [According to the final version, mainly the Reporters, with Team Leaders and Team Members providing feedback.]  At whose instigation?  [The Duke Center’s Advisory Council.]  Why on earth are they necessary?  [Rhetorical.]  Why were these being drafted well before the rules even become effective?  Do these things have any basis in case law?  Why don’t they compare what they are saying to the official Advisory Committee notes?  Why don’t they give any concrete examples of a particular type of case such as employment discrimination?  And isn’t there a Rules Enabling Act issue in here somewhere?       

Despite all these questions, I frankly put the Guidelines out of my mind, after satisfying myself that the Duke Center was not representing that its Guidelines were legally binding, and after posting about their existence on this blog (stating that the Center had asked for comments). 

Professor Suja Thomas of the University of Illinois College of Law, however, has challenged the federal courts’ seeming “official esteem” of the Duke Guidelines that results from various ties between Duke and the federal Rules Committees.


The “Roadshow” that Uses the Duke Guidelines to “Think About” Proportionality

As we reported earlier, the Duke Center and the ABA are jointly presenting an “unprecedented” "Roadshow" on the 2015 discovery amendments.  The former chair and a former member of the Civil Rules Advisory Committee, Judge Lee Rosenthal and Professor Steven Gensler, respectively, will be the moderators for the Roadshow.  As Professor Thomas has noted, the Roadshow’s emphasis on Judge Rosenthal’s and Professor Gensler’s former affiliation with the Advisory Committee “gives the training an imprimatur of approval.” 

It’s called a Roadshow because educational sessions have been or will be held in 13 cities nationwide.  In eleven of those cities, the Roadshow has been or will be held at the federal courthouse.  Attendance at the sessions is free for judges and clerks.

In addition to their Advisory Committee credentials, Judge Rosenthal and Professor Gensler also were the “Reporters” for the Duke Guidelines.  (Judge Rosenthal is also on the Duke Center's Board.)   The Roadshow's program agenda includes a session called “The Duke Guidelines and Practices as a Way to Think Together About the Proposed Changes and Different Ways to Implement Them.”  

It is worth noting, too, that the panelists for the various locations on the Roadshow (see here for an example of speakers) include many current and former members of the Civil Rules Advisory Committee or the Standing Committee, including Judge John D. Bates (the current Chair of the Advisory Committee), Judge Paul J. Grimm, Judge G. Koeltl, Judge Gene E.K. Pratter, Judge Paul S. Diamond, Justice David E. Nahmias, Judge Amy St. Eve, and attorneys Daniel Girard and Elizabeth Cabraser, as well as the head of the Federal Judicial Center, Judge Jeremy Fogel.  In addition, the current Associate Reporter for the Advisory Committee, Professor Richard Marcus, is scheduled to replace Professor Gensler as the moderator at the San Francisco event. Add it all up, and it is hard to shake the impression that the Roadshow and the Duke Guidelines are unofficially blessed by leaders of the federal judiciary.  


A Draft of the Duke Guidelines Was Presented to Federal Magistrate Judges

A draft of the Duke Guidelines was even used at a workshop for federal magistrate judges last April.  According to the blog of the University of Oklahoma College of Law (Professor Gensler’s law school), posted on April 30, 2015, “The Federal Judicial Center invited Welcome D. & W. DeVier Pierson Professor Steven Gensler to present at the 2015 National Workshops for U.S. Magistrate Judges.  Along with Judge Lee H. Rosenthal (S.D. Tex.), Professor Gensler led a discussion of the amendments to the Federal Rules of Civil Procedure that are scheduled to take effect on December 1, 2015.”  

The blog post does not explicitly state that Professor Gensler and Judge Rosenthal used the Duke Guidelines in their presentation to federal judges, but as they are the Reporters for the Guidelines project, it seems a pretty fair inference that an earlier draft, at least, of the Guidelines was used.  In fact, an email sent to members of the Guidelines working group in April 2015 confirmed that “Judge Rosenthal and Professor Gensler made presentations based on the document [i.e., a draft of the Guidelines] to approximately 60 magistrate judges attending the FJC [Federal Judicial Center] national workshop.”  Note that this presentation occurred eight months before the 2015 amendments were even to become effective.


Professor Thomas’ letter to the Chief Judges

Enter Professor Suja Thomas.  She sent a letter to the Chief Judge for the federal district court in each of the 13 cities of the Roadshow, asserting that “federal judges should not be trained on privately generated, corporate sponsored guidelines on any rules, including the proportionality rule” and raising Rules Enabling Act concerns.  She asserted that the trainings would use the Duke Guidelines and that those Guidelines “were generated through Duke Law School’s privately-funded Center for Judicial Studies.”  She asked each Chief Judge to consider not holding the training at the federal courthouse.   

The Chair of the Standing Committee, Judge Jeffrey S. Sutton, along with Judge John D. Bates and Judge David G. Campbell, then sent a letter to the Chief Judges responding to Professor Thomas’ letter.   Judge Sutton’s letter emphasized that the 13 conferences (he refrained from calling them a Roadshow) “do not involve official judge training,” which is conducted by the Federal Judicial Center.   Moreover, Judge Sutton stated that the Rules Committees “have had no role in planning the conferences addressed in Professor Thomas’ letter” and “do not endorse the Guidelines,” and that the Guidelines are not part of the 2015 amendments or the Advisory Committee’s official notes.  Judge Sutton also noted that past and present members of the Rules Committees were free to participate in conferences so long as they clarified that they did not speak for the Committee.    

Getting to the immediate question facing the Chief Judges, Judge Sutton stated:

As for whether the conferences should be held in federal courthouses, that of course is a choice for each Chief Judge and each court.  If similar events are held in your courthouse, it is difficult to understand why this kind of conference cannot occur there.  See Guide to Judiciary Policy, Vol. 2B, Chap. 3, section 4.7-1(d).  The choice whether to attend a conference as a member of the audience is for each judge to make – just as it would be with respect to any other conference sponsored by a private organization.

I applaud Judge Sutton and the other judges for responding so quickly and clearly to confirm that the Rules Committees do not endorse the Guidelines.  I still suspect, though, that holding the Roadshow sessions at the federal courthouses gives the appearance of official approval of the Guidelines.   Live tweets (#LitigationFRCP) from the Roadshow locations that have already occurred reported that the federal courthouses were “sold out” and “packed.”  If I, who have no affiliation with the Advisory Committee and am not a federal judge, was the moderator of the Roadshow, I doubt I would have been given permission to hold the events in the federal courthouse, nor that the events would have been “packed.”  In addition, the active participation of numerous current and former members of the Rules Committees in the Roadshow enhances the impression of tacit approval of the Guidelines, however strenuously the opposite is stated.


Who Sponsors the Duke Center?

Recently, Professor Thomas published an opinion piece in Law360 about the Duke Guidelines.  She elaborated on her concerns: “With corporate influence, Duke has published guidelines that permit corporations not to disclose information that is required under the federal rule, and federal judges are being educated on those guidelines.”  As one example of a conflict between the pending FRCP and the Guidelines, she refers to the Guidelines’ suggestion that “the parties and the judge should consider initially focusing discovery on the subjects and sources that are most clearly proportional to the needs of the case.”   The standard in the actual rule that was passed is that discovery should be “proportional to the needs of the case.”  And neither the pending rule nor the official Advisory Committee notes say anything about “initially focusing discovery” (sometimes termed “core discovery”).  

Professor Thomas also accurately stated that corporations that lobbied in favor of the amended proportionality rule “sponsor the Duke Law Center for Judicial Studies.”  

The Duke Center posted a response to Professor Thomas on its website.  Without rehashing some of the finer points of Duke’s posted response, I think it is fair to say that it sidesteps her overall point.  It takes issue with her assertion that the Duke Center is corporate-sponsored.  In fact, it states, “the Center is mostly funded by a $5 million foundation grant from The Duke Endowment,” and also receives “donations from alumni and others across the spectrum of practice.”  (The spectrum from A to B, apparently, from in-house counsel of huge corporation to national plaintiffs’ class action firm.)  Finally, the Center stated that it is funded by “a standard contribution” from each of the Center’s Advisory Council members, “which goes into a general Law School fund” and “is a trivial part of the Center’s overall funding.”

But Professor Thomas did not assert that the Center was entirely corporate-sponsored, nor would an outsider have any way of knowing the details of the Center’s finances other than by looking at the website.  The Center’s website has a direct link entitled "Sponsors," which links to a page that says, “Thank you to our 2015 sponsors!”  It appears that the sponsors and the members of the Center’s Advisory Council are virtually the same.  The top two sponsors listed, donating $10,000 each, were ARPC and Bayer Corp.  (What’s ARPC, you ask?  According to its website, “ARPC is an expert services and business advisory firm dedicated to providing premier analytical expertise and guidance to clients facing complex legal and business challenges.”  Some of its representative clients are Bristol-Myer Squibb, Dow Corning, Tyson Foods, Kirkland & Ellis, and Skadden Arps.)

The 12 other corporate members of the Duke Center’s Advisory Council (besides Bayer), also listed as sponsors of the Duke Center, contributed $7,500 each in 2015, for a total of $90,000.  Finally, the 12 law firm members/sponsors (six each, plaintiffs’ firms and defendants’ firms) contributed $5,000 each in 2015, for a total of $60,000.

That’s a grand total of $170,000 for 2015, of which $110,000 (65%) was contributed by large corporations.  Now, it is likely true that the donation by any one of them is a “trivial” amount going to any particular endeavor of the Duke Center.  But that misses the point.  These donations buy access and influence.  The members would not be making the contributions otherwise.  Whether the Center also has other sources of operating funds is irrelevant.


Plaintiffs’ Attorneys Strongly Opposed the Proportionality Amendments to the FRCP

The Duke Center's response also asserts that the Guidelines were “developed by a distinguished group of practitioners – drawn from both sides of the ‘v’ . . .”   Some would dispute that the Guidelines were “developed” by anyone but the Reporters, but it is true that the list of “Team Leaders” and “Team Members” providing feedback on drafts does contain many plaintiffs’ attorneys.  But that does not mean that the Guidelines, or the 2015 amendments themselves, affect plaintiffs and defendants evenhandedly.  

Many of the plaintiffs’ lawyers who are included in the Guidelines’ “Team Leaders” and “Team Members” testified in front of, and submitted written public comments to, the Advisory Committee, opposing the proportionality amendments.  (Among the plaintiffs’ lawyers testifying and submitting comments against the 2015 amendments were Mark Chalos, Joe Garrison, Jennie Anderson, Lea Bays, Anna Benvenutti Hoffman, and Ariana Tadler – all of whom are listed as “Team Leaders” or “Team Members” on the Guidelines’ acknowledgements page.)

It is doubtful that those plaintiffs’ lawyers all changed their minds after the amendments went through, and now favor proportionality and the Guidelines.  More likely, they participated in the Guidelines drafting process because if they hadn’t, the result might have been even worse for plaintiffs.   


Are the Duke Guidelines Helpful or Harmful?

An in-depth review of the Guidelines themselves is beyond the scope of this blog post, which is already far too long.  Many of the Guidelines and Practices don’t say much beyond the rules and the Advisory Committee notes (except they use more words), which begs the question of why they would be needed at all.  Some of the Guidelines and Practices, though, venture far beyond the 2015 rules amendments, as Professor Thomas pointed out.  

If widely followed, the Duke Guidelines’ suggestion that judges order “initial focused discovery” or “core discovery” would typically hamper plaintiffs’, but not defendants’, discovery efforts far more than the rules amendments that were actually passed.  The main reason plaintiffs’ attorneys opposed these FRCP amendments, which restrict discovery, is that plaintiffs need discovery more than defendants.  This is because defendants usually possess or control the bulk of the essential evidence in the case, including the documents and the key witnesses.  Therefore, at the beginning of a case, defendants have a far better idea of what is out there, while plaintiffs are flying blind.  This handicaps the plaintiff in shaping “core discovery.” 

Most plaintiffs’ lawyers and most Civil Procedure professors believe that the actual 2015 rules amendments go quite far enough in limiting discovery to defendants’ benefit.  Additional narrowing of discovery through “Guidelines” that were the result of a non-public and privately funded process goes too far.  


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