By Pamela Wolf, J.D.
In his year-end report on the federal judiciary, Supreme Court Chief Justice John Roberts—perhaps aware of the substantial concern they have prompted among attorneys—focused on the 2015 amendments to the Federal Rules of Civil Procedure. The five-year project that produced the amendments was aimed at addressing “the most serious impediments to just, speedy, and efficient resolution of civil disputes,” according to the report
. As to the workload among federal courts, in the 12-month period ending September 30, 2015, caseloads declined in the Supreme Court, the federal appeals courts, and the district courts, the appendix to the report states.
In 2010, the Advisory Committee on Civil Rules sponsored a symposium on civil litigation, which “confirmed that, while the federal courts are fundamentally sound, in many cases civil litigation has become too expensive, time-consuming, and contentious, inhibiting effective access to the courts,” the Chief Justice noted. The symposium specifically identified the need for the following procedural reforms that would:
- encourage greater cooperation among counsel;
- focus discovery—the process of obtaining information within the control of the opposing party—on what is truly necessary to resolve the case;
- engage judges in early and active case management; and
- address serious new problems associated with vast amounts of electronically stored information.
The amended rules
were effective December 1, 2015. “They mark significant change, for both lawyers and judges, in the future conduct of civil trials,” Roberts wrote, adding, “The amendments may not look like a big deal at first glance, but they are.”
Significant changes to FRCP.
The Chief Justice focused on several significant changes to the FRCP:
Only eight words have been added to Rule 1, but Roberts said they are “words that judges and practitioners must take to heart.” The Federal Rules ‘should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding,’ according to Rule 1. Roberts explained it this way: “The underscored words make express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation—an obligation given effect in the amendments that follow. The new passage highlights the point that lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes.”
Roberts quoted Rule 26(b)(1), saying that it “crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality”:
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.
As a fundamental principle, this rule states that “lawyers must size and shape their discovery requests to the requisites of a case,” Roberts explained. “Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery.” The Justice underscored the careful and realistic assessment of actual need, which may, as a practical matter, require the active involvement of the judge to guide decisions about the scope of discovery.
Crucial role of judges.
The amended rules emphasize the crucial role of federal judges in engaging in early and effective case management, Roberts noted, pointing out that prior rules already required the judge to meet with the lawyers after the complaint is filed, to confer about the needs of the case, and to develop a case management plan. “The amended rules have shortened the deadline for that meeting and express a preference for a face-to-face encounter to enhance communication between the judge and lawyers,” the Justice explained. “The amendments also identify techniques to expedite resolution of pretrial discovery disputes, including conferences with the judge before filing formal motions in aid of discovery. Such conferences can often obviate the need for a formal motion—a well-timed scowl from a trial judge can go a long way in moving things along crisply.”
Electronically stored information.
The amended rules also address electronically stored information (ESI). Roberts pointed out that Rules 16 and 26(f) require the parties to reach agreement on preservation and discovery of ESI in their case management plan and discovery conferences, and that Rule 37(e) specifies the consequences of a party’s failure to observe the generally recognized obligation to preserve ESI in the face of foreseeable litigation. Justice Roberts mapped out courts’ options when ESI is not preserved: “If the failure to take reasonable precautions results in a loss of discoverable ESI, the courts must first focus on whether the information can be restored or replaced through alternative discovery efforts. If not, the courts may order additional measures ‘no greater than necessary’ to cure the resulting prejudice. And if the loss of ESI is the result of one party’s intent to deprive the other of the information’s use in litigation, the court may impose prescribed sanctions, ranging from an adverse jury instruction to dismissal of the action or entry of a default judgment.”
The amendments eliminated Rule 84, which referenced a now outdated appendix containing civil litigation forms originally intended give lawyers and unrepresented litigants examples of proper pleading. The Administrative Office of the United States Courts has largely completed the work of replacing outdated forms with modern versions reflecting current practice and procedure. Twelve revised forms have been posted on the federal judiciary’s website
; three more will be posted next month.
Making it work.
Justice Roberts noted that the Federal Judicial Center—the educational and research arm of the federal judiciary—has created a training program for federal judges to ensure they are prepared to introduce the procedural reforms in their courtrooms. For lawyers, the American Bar Association and many local bar organizations have initiated educational programs and workshops. He also observed that the practical implementation of the amended rules may require some adaptation and innovation, and he encouraged support of the judiciary’s plans to test the workability of new case management and discovery practices through pilot programs. Roberts also noted that various judicial, legal, and academic organizations have supplied what he called “key insights” to help improve both federal and state rules of practice, and that they continue to provide perspectives and expertise on the new rules’ rollout.
Justice Roberts had this to say about the courts’ role in implementing the new rules: “Judges must be willing to take on a stewardship role, managing their cases from the outset rather than allowing parties alone to dictate the scope of discovery and the pace of litigation. Faced with crushing dockets, judges can be tempted to postpone engagement in pretrial activities. Experience has shown, however, that judges who are knowledgeable, actively engaged, and accessible early in the process are far more effective in resolving cases fairly and efficiently, because they can identify the critical issues, determine the appropriate breadth of discovery, and curtail dilatory tactics, gamesmanship, and procedural posturing.”
The Chief Justice had a few words for lawyers also: “As for the lawyers, most will readily agree—in the abstract—that they have an obligation to their clients, and to the justice system, to avoid antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship. I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics. The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results.”
Federal court workload.
The appendix to the report stated that for the 12-month period ending September 30, 2015, caseloads decreased in the Supreme Court, the regional appellate courts, the district courts, the bankruptcy courts, and the pretrial services system. There was growth, however in the number of persons under post-conviction supervision.
The total number of cases filed in the Supreme Court was down by 4.65 percent from 7,376 filings in the 2013 Term to 7,033 filings in the 2014 Term. During the 2014 Term, 75 cases were argued and 75 were disposed of in 66 signed opinions, while 79 cases were argued and 77 disposed of in 67 signed opinions during the 2013 Term. The Court also issued eight per curiam decisions during the 2014 Term in cases not argued.
In the federal courts of appeals, filings were down 4 percent to 52,698. Appeals involving pro se litigants (51 percent of filings) fell 4 percent. Total civil appeals decreased 7 percent. Criminal appeals and administrative agency decisions rose 3 percent. Bankruptcy appeals grew 7 percent.
In the district courts, civil case filings were down 6 percent to 279,036. Cases involving diversity of citizenship dropped 14 percent, largely due to a reduction in personal injury/product liability filings. Cases with the United States as defendant dropped 7 percent in response to fewer filings of prisoner petitions and Social Security cases. Cases in which the United States was plaintiff declined 10 percent as filings of forfeiture and penalty cases and contract cases decreased.