Today’s post looks at some proposed changes to the Federal Rules of Civil Procedure from the Committee on Rules of Practice and Procedure. Actually, I do not think these proposals are actually proposals just yet, and that is a good thing.
The process for promulgating an amendment to a rule involves multiple levels of consideration and requires approval from different committees. First, the appropriate advisory committee must rview and approve a rule, followed by the Committee on Rules of Practice and Procedure. Following approval by the Committee on Rules of Practice and Procedure, proposed amendments must be considered and approved by the Judicial Conference, the Supreme Court, and then Congress.
Public comment and input is invited at every step of the process, and lest any cynics out there think otherwise, the comments made by practitioners do count. In fact, public comment via emails and letters can — and not infrequently does — result in either suggestions or in actual changes to the rules. I encourage all readers who practice in federal courts to visit the United States Courts website and make comments on these rule changes.
The overall purpose of the Federal Rules of Civil Procedure is stated in Rule 1 — “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. That is a goal that all litigators everywhere should support, and I have not yet met a client who wanted anything other than a just, speedy, and inexpensive end to their case. And, given that the majority of my practice is in the U.S. District Court for the Eastern District of Virginia, I have gained a real respect for the sort of legal culture that is necessary for a Court to be able to move cases along.
So I read with interest the recent proposals — all of which are designed to speed up the discovery process — because I think any proposal to speed up the discovery process is one that should be embraced generally….but I cannot say that I think the recent proposals should be adopted, and that is my reason for today’s blog post.
The main thrust of the new proposals is as follows:
1) Limiting the number of requests for documents in Fed. R. Civ. Pro. 34 to 25, and thus adding a presumptive limit where one does not currently exist;
2) Reducing the presumptive limit on depositions in Fed. R. Civ. Pro. 30 to 5 from 10;
3) Reducing the presumptive time limit per deposition to 4 hours from 7 hours;
4) Reducing the presumptive number of interrogatories in Fed. R. Civ. Pro. 33 to 15 from 25;
5) Limiting the number of requests for admission in Fed. R. Civ. Pro. 36 to 25; as with Rule 34, this would add a presumptive limit where one does not currently exist.
I do not think these proposed changes will do anything to expedite civil discovery; in fact, much to the contrary, I think these changes would cause delays. I say that because the only way to truly make cases move faster is for courts to exercise a firm hand in enforcing the already existing rules. And the only way that will happen is for the legal culture of a given locality to change such that it does not tolerate slack behavior from lawyers on either side of a case. As I have discussed in past blog posts, I agree with the Judges in the E.D.Va., who think that the speed and precision of our courts are the result of our legal culture in the E.D.Va.
The simple truth is that lawyers have a natural tendency to fear — and thus to postpone — the necessity of committing to a particular version of facts in discovery. This is not an issue of “plaintiff’s lawyers vs. defense lawyers” or of “greedy corporate interests trying to stick it to the little guy” or of a “greedy cabal of wealthy plaintiff’s lawyers” (although some folks in the legal community seem to see everything that happens in the legal community through that lens.) It is human nature to avoid making tough decisions.
In fact, I would say that judgment is perhaps the most important — but the least seen — skill among lawyers. When I say judgment, I mean the ability analyze a case, decide what facts are relevant what facts are not, and then tailor the discovery to fit the theory of the case. This is all first year law school stuff, but the courage to actually do it is rare. The exercise of lawyer judgment is rare because it is easier not to do it, and because it preserves options in the future.
I do not think there are many flaws in the civil discovery process we have now, but the flaws that we do have start where everything else in civil discovery starts — with the numbered paragraphs of the Complaint and the Answer. How many times have we seen answers like the following: “the allegations of paragraph * of the Complaint consist of legal conclusions to which no response is required…”
The simple fact is that that is not a sufficient answer to an allegation in a Complaint, but it appears all the time. The other side then has to send interrogatories to the other side and/or take deposition testimony on those allegations. The correct thing to do is to file a Motion to Strike under Fed. R. Civ. P. 12(f) because there is no reason for Plaintiff to incur additional expense and time doing discovery on simple matters that should be either admitted or denied in the Complaint.
This is not a problem limited to defensive litigation, of course. There are many negative things that plaintiffs do in Complaints that create equal problems and delay on the other side, I mention this example merely by way of example.
Another simple thing that could be done to speed cases along is to put real teeth into the mandatory initial disclosures of Fed. R. Civ. P. 26(a)(1), but no one seems interested in that…in fact, the Committee reported in its January 2013 report that “[T]he value of Rule 26(a)(1) initial disclosures is regularly debated by various groups.”
Then again, it sure is easy to sit here and blog about what would make everything right….and answers in the real world always seem more complicated…