Minor changes to the Federal Rules of Civil Procedure took effect last month, but the debate over the major changes slated for December 2015 is still under way and dividing the bar.
Tension over some of those potential changes to the rules that govern practice in the federal courts was evident in the report adopted by the federal courts committee of the Philadelphia Bar Association in December, which endorsed more than a dozen noncontroversial changes, opposed one change, and remained neutral on three proposed changes.
“The committee takes no position on three proposed amendments because it could not agree on whether they are beneficial, with strongly held views on both sides,” according to the report.
That report was a product of six months of vigorous debate among two-dozen volunteer members of a subcommittee to the federal courts committee of the bar association charged with weighing the proposed changes.
“It was heated the entire time,” said Gregg Kanter, of the Gregg H. Kanter Law Office in Philadelphia, of the tenor. He was the chair of the subcommittee, which was composed of nearly half plaintiffs lawyers, some defense lawyers, and lawyers who represent both plaintiffs and defendants.
But, he said, “people tried to think outside of their particular practice areas” to consider what would be best for everyone—including both plaintiff and defense sides as well as the court.
U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvania, who sits on the Advisory Committee on Rules of Civil Procedure, which drafts the proposals for updates to the federal rules, called the bar’s report one of the more thorough reactions that has been submitted during the public-comment period on the proposed changes.
The committee has received thousands of pages of written comment in addition to the oral input gathered at a recent public-comment session held in Washington, D.C. Next, there will be a public-comment session held in Phoenix and then a third in Dallas.
The advisory committee, made up of 15 members—judges, professors and practitioners—developed the proposed changes in response to concerns from the legal community, Pratter said. The changes are meant to encourage more attention and case management from judges and, in the absence of active case management, to speed up the life of a case by making pretrial proceedings faster and less expensive.
“The rules do not rob the judges of the case management function,” Pratter said, but they do encourage the speedy execution of a case.
The proposals that have attracted the most attention are the conceptual ones, Pratter said, explaining that making discovery proportionate to the monetary value of the case is one of those changes.
Kanter agreed, saying that the most controversial amendments are on the proportionality of discovery, which would effectively narrow the scope of discovery, and a reduction in the number of presumptive depositions.
Changing Rule 30(a)(2)(A)(i) so that the limit per side for presumptive depositions is five rather than 10 is the only proposal that the Philadelphia Bar Association committee rejected.
Almost half of the cases that involve expert depositions have at least one side taking more than five, according to the report.
“In the committee’s experience, a large portion of federal court cases require more than five depositions by one side where the case proceeds to trial,” the report says. “The committee is therefore concerned that the proposed amendment sets a new presumptive limit that is ‘too small’ for a large percentage of cases (and which would require judges to divert judicial resources to re-setting the limit in a large percentage of cases), and that the new presumptive limit of five depositions would interfere with parties’ ability to prepare their cases.”
Beyond that, it said, a lower threshold for depositions would discourage settlement since more information available during discovery allows each side to better assess its strengths and weaknesses.
The other majorly contested issue, proportionality, was among the amendments on which the subcommittee couldn’t agree.
The language proposed to be added to Rule 26(b)(1) specifies that the discovery allowed to be sought must be “proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, 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.”
Most of the plaintiffs bar opposes the change, since it generally opposes anything that would reduce the scope of discovery, Kanter said, and the defense bar supports the change.
Bart Cohen, a plaintiffs lawyer from Berger & Montague, chaired the group that evaluated that rule and characterized it as the biggest threat to plaintiffs than any of the other proposed rule changes.
Cohen cited the civil procedure scholar Arthur R. Miller, who said that all procedural changes over the last 30 years have been aimed at lightening the load on district court judges, which makes it harder to get cases to trial.
“Rules are supposed to be directed at truth and justice,” Cohen said, and limiting discovery undermines that search.
Sometimes discovery goes far beyond the scope of the case, Kanter said, since lawyers think they need to know everything. One of the driving ideas behind these proposed changes is promoting cooperation between opposing lawyers, forcing them to talk more, which will likely relieve hostility, he explained.
The Pennsylvania Bar Association has recommended that the committee add clarifying language to the rule about proportionality of discovery that would make clear that the amount in controversy and the expense of discovery are only two factors among others, like the importance of the issues at stake, the parties’ resources, and the importance of the discovery that is sought.
It also recommended lowering the number of depositions to seven or eight rather than the proposed five.
The committee carefully weighs the input it gets, Pratter said, explaining that one of its greatest fears in dealing with discovery rules is creating a cottage industry that breeds more litigation.