New Rules Should Foster New Legal Culture

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By Tera Brostoff

Feb. 25 — The newly amended Federal Rules of Civil Procedure, which went into play Dec. 1 2015, were designed to change legal culture by fostering cooperation, proportionality and active judicial case management. While the bench and bar are expected to study and begin applying the new rules, a fundamental shift in the way civil law is conducted is necessary to realize the amendments' ultimate goal: creating a more just and efficient judicial system.

Several judges and lawyers who are current or former members of the Advisory Committee on Civil Rules addressed the rule changes and the reason for their creation during the Fourth Civil Justice Reform Summit on Feb. 25. The candid discussion included a plea that lawyers change the way they behave in litigation, as well as a nod to Chief Justice John Roberts' 2015 Year-End Report.

The message from the panelists was clear: attorneys must substantially modify their eDiscovery practices.

The Goals of the Duke Conference 

The Rules Amendments have their roots in the 2010 Duke Conference, a Duke Law School Center for Judicial Studies series of programs on emerging or pressing legal issues.

The 2010 Duke Conference was convened to examine cost and delay in the civil justice system. A perception existed five or six years ago that the early stages of litigation were taking far too long, and rule changes were necessary to address that problem. (Indeed, several rules have now created shorter timelines for service and scheduling conferences.)

Proportionality, Cooperation 

Proportional discovery and cooperation were also discussed extensively at the Duke Conference, and figure prominently in the amendments.

Judge John G. Koeltl, of the Southern District of New York, sat on the Advisory Committee and helped craft the amendments. Deemed the “architect of the Duke Conference” by fellow Committee member John Barkett, Judge Koeltl highlighted some of the key components to the new Rules.

“Proportionality is now included in the scope of discovery in 26(b)(1), right in the first sentence,” Judge Koeltl explained. “The greatly expanded Advisory Notes to the Rule explains that proportionality had been in the Rules for a long time.”

As for the proportionality factors that have likewise gained more prominence by being moved up into Rule 26(b), Judge Koeltl advised that all the factors should be taken into account in a proportionality analysis. He also noted that the Committee added a new factor—the relative access to relevant information.

“Just because a party has more information and therefore has to produce more information, does not make the production disproportionate,” Judge Koeltl said, addressing cases in which one party, often the defendant, has far more information.

Judge Koeltl also explained that cooperation is highlighted in amended Rule 1, which now includes the parties as among the entities responsible for the ‘just, speedy and inexpensive' determination of actions.

That portion of new Rule 1 has been favorably received, including by a prominent research and educational institute dedicated to the advanced study of law and policy. “The Sedona Conference® said we got that exactly right by amended Rule 1 and putting cooperation in its Advisory Note,” Judge Koeltl said.

Spanning the Circuit Divide.

Newly amended 37(e) was also the brainchild of the Duke Conference. The new rule addresses the need for changes in the areas of preservation and sanctions for loss of electronically stored information.

“If former Rule 37(e) was meant to be a safe harbor, it wasn't very deep and it wasn't very wide,” Barkett quipped.

Barkett explained that Rule 37(e)(1) allows “judges to be judges” in their decision to choose sanctions that would “level the playing field.” On the other hand, Rule 37(e)(2) was designed to deal with the differences in circuits on the culpability standard.

“Before, you would have similar facts in different circuits but reach different results,” Barkett lamented. “That's hardly just.”

A Culture Change

But the amended rules won't affect much change if lawyers and judges don't commit to an overhaul of legal culture.

“We need to look at what Chief Justice Roberts highlighted in his year-end message,” Judge Jeremy Fogel, of the Northern District of California, said. “We didn't go through this five year process just so a couple rules could be changed in the FRCP…The process was undertaken to change the way we do business.”

Judge Fogel said that if we dig into the Advisory Committee Notes, it become apparent that the Committee aimed to change the way civil litigation was run.

“We are interested in the big picture and it's not enough to say that everyone has to know the difference in the new rules,” Judge Fogel said. “To really do it differently, you have to think differently.”

He advocated for educational programs that allow judges to think about the importance of active case management.

Robert D. Owen, of Sutherland Asbill & Brennan LLP and president of the eDiscovery Institute, agreed with Judge Fogel's assessments.

“I've been surprised at how few outside law firms have been suggesting in-house programs to their corporate clients to familiarize the in-house litigators with the impact of the new Rules,” Owen told Bloomberg BNA Feb. 29. “We are seeing some decisions coming down already in which the parties haven't even taken advantage of the new rules.”

Owen said it is shocking that people aren't aware of the thrust of the new rules.

“The rules have the potential to be momentous if they are applied in the spirit in which they were intended by the Rules Committee,” Owen told Bloomberg BNA.

The Summit was presented by The Institute for the Advancement of the American Legal System in Denver, where IAALS is headquartered.

To contact the reporter on this story: Tera Brostoff in Washington at

To contact the editor responsible for this story: Carol Eoannou at

Former Magistrate Judge Hedges Weighs In

Ronald J. Hedges, former U.S. Magistrate Judge and the chair of Bloomberg BNA's eDiscovery Advisory Board commented on this story via e-mail on Feb. 26:

“I appreciate the laudatory goals of cooperation, proportionality and active judicial case management. Nevertheless, several reality checks are in order.

“First, the vast majority of civil litigation in the nation takes place in state, not federal, courts. Most litigators practice at the State level. The amendments to the federal rules will not impact state practice given, among other things, the sheer volume of civil litigation in the states, the general absence of any case management other than that reactive to problems and the poor level of education for state judges and litigators about electronically stored information.

“Second, before there can be the sea change contemplated by Chief Justice Roberts and the members of the Civil Rules Advisory Committee, individual district and magistrate judges will have to actively engage federal litigators on a regular and continuing basis and challenge those litigators to cooperate and to “be” proportional.

“One cannot help but wonder whether we will see a wave of disputes about perceived failures to cooperate or exercise proportionality in discovery that will increase rather minimize cost and delay.”

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