From rules of procedure to how lawyers litigate: 'Twixt the cup and the lip

Denver University Law Review

Volumn 87, Issue 2, 2010, Pages 227-244

  Rosenthal, Lee H ^a  

^a NONE

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EID: 78649349775     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (134)

1. Stephen N. Subrin, Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules, 39 B. C. L. REV. 691, 726 (1998).
2. See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1947-54 (2009) (analyzing the level of specificity in pleadings required to avoid dismissal) ;
3. Bell Atl. Corp. v. Twombly, 550 U. S. 544, 554-70 (2007) (same).
4. See Twombly, 550 U. S. at 559 ("Probably, then, it is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery in cases with no 'reasonably founded hope that the [discovery] process will reveal relevant evidence' to support a § 1 claim." (alteration in original)
5. (quoting Dura Pharms., Inc. v. Broudo, 544 U. S. 336, 347 (2005))) ;
6. see also Iqbal, 129 S. Ct. at 1953 (noting that "the question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process," and that the "rejection of the careful-case-management approach is especially important in suits where Government-official defendants are entitled to assert the defense of qualified immunity" because "[t]he basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation, including 'avoidance of disruptive discovery'"
7. (quoting Siegert v. Gilley, 500 U. S. 226, 236 (1991) (Kennedy, J., concurring))).
8. See, e.g., E. & W. D. ARK. CT. R. 26.1 (4) (e)
9. (requiring the report filed under FED. R. CIV. P. 26 (f) to "contain the parties' views and proposals regarding" certain matters, including "problems which the parties anticipate may arise in connection with electronic or computer-based discovery") ;
10. D. COLO. CT. R. app. f
11. (providing instructions for preparation of a scheduling order, which should contain a report of preconference discovery and meeting under FED. R. CIV. P. 26 (f) that includes: a "[s]tatement as to whether the parties anticipate that their claims or defenses will involve extensive electronically stored information, or that a substantial amount of disclosure or discovery will involve information or records maintained in electronic form"; in cases involving such electronic discovery, an indication of "what steps [the parties] have taken or will take to (i) preserve electronically stored information; (ii) facilitate discovery of electronically stored information; (iii) limit associated discovery costs and delay; and (iv) avoid discovery disputes relating to electronic discovery"; and a description of "any agreements the parties have reached for asserting claims of privilege or of protection as trial-preparation materials after production of computer-generated records") ;
12. S. D. GA. CT. R. 26 (f) Report
13. (stating that a report under FED. R. CIV. P. 26 (f) should include, if the case involves electronic discovery, a statement as to "whether the parties have reached an agreement regarding the preservation, disclosure, or discovery of electronically stored information" and an identification of "any issues regarding electronically stored information as to which the parties have been unable to reach an agreement"; and, if the case involves privilege or work-product claims, a statement as to "whether the parties have reached an agreement regarding the procedures for asserting claims of privilege or protection after production of either electronic or other discovery material") ;
14. N. D. OHIO CT. R. 16.3 (b) (2) (F) (referencing a default standard for conducting electronic discovery if the parties have not agreed).
15. See, e.g., N. D. CAL. PATENT L. R. 1-1 ("Patent Local Rules") ;
16. N. D. ILL. L. R. 3.4 ("Notice of Claims Involving Patents or Trademarks") ;
17. S. D. TEX. P. R. 1-1 ("Rules of Practice for Patent Cases in the Southern District of Texas") ;
18. E. D. TEX. P. R. 1-1 app. m ("Rules of Practice for Patent Cases").
19. See Subrin, supra note 1, at 706.
20. Id.
21. Id. at 706-07.
22. Id. at 707.
23. Id. at 706-07 ("A discovery-skeptic both in the 1930s and today might share the concerns expressed during the Advisory Committee drafting process or in the debates about the Federal Rules: that expanded discovery provisions, combined with the adversarial nature of lawyers and their clients and the natural desire of attorneys to earn a good living, would result in extreme attempts to resist disclosure and to discover every shred of potential evidence; that the actual utilization of discovery or even the threat thereof would dramatically influence what cases are brought and how they are settled in ways that may not reflect the true merits of a lawsuit or potential lawsuit; that expansive discovery provisions would require courts to spend significant time ruling on discovery motions; and that expanded discovery would diminish the use and importance of trial in open court.").
24. Id. at 722 (internal quotation marks omitted)
25. (quoting Proceedings of the Meeting of the Advisory Committee on Rules for Civil Procedure of the Supreme Court of the United States (Feb. 22, 1935), in RECORDS OF THE U. S. JUDICIAL CONFERENCE: COMMITTEES ON RULES OF PRACTICE AND PROCEDURES, 1935-1988, microformed on CIS No. CI-206-59 (Cong. Info. Serv.)).
26. Id. at 721 (internal quotation marks omitted)
27. (quoting Proceedings of the Meeting of the Advisory Committee on Rules for Civil Procedure of the Supreme Court of the United States (Feb. 22, 1935), in RECORDS OF THE U. S. JUDICIAL CONFERENCE: COMMITTEES ON RULES OF PRACTICE AND PROCEDURES, 1935-1988, microformed on CIS Nos. CI-209-59 to-60 (Cong. Info. Serv.)).
28. See, e.g., Richard L. Marcus, Discovery Containment Redux, 39 B. C. L. REV. 747, 752-53 (1998) (describing rising opposition to broad discovery) ;
29. Maurice Rosenberg & Warren R. King, Curbing Discovery Abuse in Civil Litigation: Enough is Enough, 1981 BYU L. REV. 579, 579 (1981) (noting that "[r]ecent years have witnessed a torrent of criticism of the practice of pretrial discovery in federal litigation," and noting one commentator's concern that "'[u]nnecessary intrusions into the privacy of the individual, high costs to the litigants, and correspondingly unfair use of the discovery process as a lever toward settlement have come to be part of some lawyers' trial strategy.'"
30. (quoting William H. Erickson, The Pound Conference Recommendations: A Blueprint for the Justice System in the Twenty-First Century, 76 F. R. D. 277, 288 (1978))).
31. See, e.g., Thomas Y. Allman, The Need for Federal Standards Regarding Electronic Discovery, 68 DEF. COUNS. J. 206, 206 (2001) ("[T]here is an urgent need to treat the discovery of electronic records differently from traditional documents, and amendments to the Federal Rules are necessary to help impose order in an area of the law that is both unpredictable and increasingly subject to abuse.") ;
32. Richard L. Marcus, Confronting the Future: Coping with Discovery of Electronic Material, LAW & CONTEMP. PROBS. Spring/Summer 2001, at 253, 259-60 (discussing rising concerns about electronic discovery) ;
33. Martin H. Redish, Electronic Discovery and the Litigation Matrix, 51 DUKE L. J. 561, 589-92, 628 (2001) (arguing that the costs and burdens of electronic discovery are "substantially greater" than the costs and burdens involved in traditional discovery, and concluding that "a system of discovery control that fails to take account of the special needs and unique impact of the computer age is destined to fail").
34. See, e.g., 28 U. S. C. § 2072 (a) (2006) (giving the Supreme Court the "power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals") ;
35. id. § 2073 (authorizing the Judicial Conference to prescribe procedures for consideration of proposed rules, establish committees to assist with the rulemaking process, and establish a standing committee to review proposals of other committees and to make recommendations to the Judicial Conference) ;
36. U. S. Courts, Federal Rulemaking, http://www.uscourts.gov/rules/ procedurejc.htm (last visited Jan. 4, 2010) ("Each Advisory Committee shall carry on 'a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use' in its particular field, taking into consideration suggestions and recommendations received from any source, new statutes and court decisions affecting the rules, and legal commentary.... The Standing Committee shall coordinate the work of the several Advisory Committees, make suggestions of proposals to be studied by them, consider proposals recommended by the Advisory Committees, and transmit such proposals with its recommendation to the Judicial Conference, or recommit them to the appropriate Advisory Committee for further study and consideration. ").
37. Steven S. Gensler, Justness! Speed! Inexpense!: An Introduction to The Revolution of 1938 Revisited: The Role and Future of the Federal Rules, 61 OKLA. L. REV. 257, 273 (2008) (observing that "[t]o the extent the Federal Rules of Civil Procedure have a rallying cry, it is found in Rule 1 and it is this: 'Justness! Speed! Inexpense!'"; and noting that "[i]f there is agreement among our contributors [to the symposium], it may be that the future of federal rulemaking depends not on finding new ideals but on fidelity to the ones we have").
38. FED. R. CIV. P. 1.
39. See, e.g., THOMAS E. WILLGING ET AL., FED. JUDICIAL CTR., DISCOVERY AND DISCLOSURE PRACTICE, PROBLEMS, AND PROPOSALS FOR CHANGE: A CASE-BASED NATIONAL SURVEY OF COUNSEL IN CLOSED FEDERAL CIVIL CASES 44 (1997), http://www.fjc.gov/ public/pdf.nsf/lookup/discovry.pdf/$File/discovry.pdf [hereinafter WILLGING ET AL., SURVEY];
40. Thomas E. Willging et al., An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B. C. L. REV. 525, 584 (1998) ("The change most likely to reduce discovery expenses, in the view of [our sample of] attorneys, is to increase the availability of judges to resolve discovery disputes.... The related concept of increasing court management of discovery also ranked high as a means for reducing discovery expenses....") ;
41. see also Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 HARV. L. REV. 427, 458 (1991) (noting that a "study of trial judges and lawyers involved in complex cases found that both believed the system would benefit from 'greater judicial involvement in the framing and control of discovery, including resolution of discovery disputes.'"
42. (quoting GORDON BERMANT ET AL., PROTRACTED CIVIL TRIALS: VIEWS FROM THE BENCH AND THE BAR 56 (1981))) ;
43. Rosenberg & King, supra note 13, at 589 (noting that a 1978 Federal Judicial Center report on discovery practices found that "effective control of discovery depends upon judicial management"
44. (citing PAUL CONNOLLY ET AL., FED. JUDICIAL CTR., JUDICIAL CONTROLS AND THE CIVIL LITIGATION PROCESS: DISCOVERY 77 (1978))) ;
45. David S. Yoo, Comment, Rule 33 (a) 's Interrogatory Limitation: By Party or by Side?, 75 U. CHI. L. REV. 911, 924 n. 76, 928, (2008) (noting that "studies have demonstrated a high correlation between judicial involvement and efficient litigation," and referencing a report that "summariz[ed] the results of a study of more than 10, 000 cases that determined that early judicial management of litigation significantly reduced the duration of litigation"
46. (citing JAMES S. KAKALIK ET AL., RAND, JUST, SPEEDY, AND INEXPENSIVE?: AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT 6, 13-15 (1996))). The 1997 Federal Judicial Center study found: To reduce discovery expenses, the highest percentage of attorneys would look to increased availability of judges to rule on discovery disputes and/or increased court management of discovery (63%) and controls on attorney conduct through sanctions and/or a civility code (62%). While substantial numbers would also find certain rule changes helpful-for example, the 44% who said a uniform national rule requiring initial disclosure would reduce expenses and the 35% who said narrowing the scope of discovery would be helpful-changes in judge and attorney behavior clearly outweigh changes in the rules.
47. WILLGING ET AL., SURVEY, supra, at 45-46. The study concluded that "[w]hen pressed to select the single most promising approach to reducing discovery problems, then, the choice that clearly outstrips others is increased judicial case management."
48. Id. at 47.
49. Marcus, supra note 14, at 255-56;
50. Richard L. Marcus, Retooling American Discovery for the Twenty-First Century: Toward a New World Order?, 7 TUL. J. INT'L & COMP. L. 153, 158-60 (1999) ;
51. Subrin, supra note 1, at 734, 736.
52. Marcus, supra note 19, at 159.
53. See id.
54. Subrin, supra note 1, at 719. Professor Subrin quotes Professor Edson R. Sunderland, who wrote the drafts of the summary judgment and discovery sections of what became the Federal Rules of Civil Procedure. Professor Sunderland told the Advisory Committee that "he did not have precedent for the combination of liberalized discovery that he had drafted." Id. He admitted that he was "going further than any single jurisdiction's discovery provisions." Id. He explained:
55. There is no very well settled system which will embrace the various objects that I have sought to attain.... [O]ne Rule would be supported by experience in one State or jurisdiction, and another by experience in another State or jurisdiction. You cannot find justification for all of these anywhere. It is strictly an eclectic provision which I have brought in here.... It was an entirely new subject matter. Now I might say that I made very little use [sic] the Equity Rules or Federal statutes, because they have only in the very slightest degree provided for what I tried to do....
56. Id. (alterations in original) (internal quotation marks omitted) (quoting Proceedings of Advisory Committee on Uniform Rules of Civil Procedure for the District Court of the United States (Nov. 17, 1935), in RECORDS OF THE U. S. JUDICIAL CONFERENCE: COMMITTEES ON RULES OF PRACTICE AND PROCEDURES, 1935-1988, microformed on CIS No. CI-113-92 (Cong. Info. Serv.)).
57. Id. at 736.
58. FED. R. CIV. P. 26 (b) (1946 amendment)
59. reprinted in 6 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 26 app. 02 (3d. ed. 2009).
60. Subrin, supra note 1, at 737-38.
61. Marcus, supra note 13, at 748.
62. See FED. R. CIV. P. 34 (b) (3) advisory committee's notes to 1970 amendment.
63. Id. 30 (a) (1970 amendment)
64. reprinted in 7 MOORE ET AL., supra note 24, § 30 app. 03.
65. Id. 33 (a) (1970 amendment)
66. reprinted in 7 MOORE ET AL., supra note 24, § 33 app. 03; id. 36 (a) advisory committee's notes to 1970 amendment.
67. Id. 26 (a) (1970 amendment)
68. reprinted in 6 MOORE ET AL., supra note 24, § 26 app. 05;
69. id. 26 (d) advisory committee's notes to 1970 amendment.
70. See generally Marcus, supra note 13.
71. FED. R. CIV. P. 16 (1938 adoption)
72. reprinted in 3 MOORE ET AL., supra note 24, § 16 app. 01.
73. Id.
74. Charles R. Richey, Rule 16 Revisited: Reflections for the Benefit and Bar, 139 F. R. D. 525, 527 (1992).
75. FED. R. CIV. P. 16 (a) - (c) (1983 amendment)
76. reprinted in 3 MOORE ET AL., supra note 24, § 16 app. 03;
77. id. 16 (c) (1993 amendment)
78. reprinted in 3 MOORE ET AL., supra note 24, § 16 app. 05.
79. Id. 16 (d) - (f) (1983 amendment)
80. reprinted in 3 MOORE ET AL., supra note 24, § 16 app. 03.
81. Id. 16 (b) (2006 amendment)
82. reprinted in 3 MOORE ET AL., supra note 24, § 16 app. 06.
83. See id. 26 (b) (1983 amendment)
84. reprinted in 6 MOORE ET AL., supra note 24, § 26 app. 07.
85. Id. 26 (b) (2) (C).
86. ARTHUR R. MILLER, FED. JUDICIAL CTR., THE AUGUST 1983 AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE: PROMOTING EFFECTIVE CASE MANAGEMENT AND LAWYER RESPONSIBILITY 33 (1984).
87. 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2008. 1, at 121 (2d ed. 1994).
88. Marcus, supra note 19, at 163.
89. FED. R. CIV. P. 16 (c) (1993 amendment)
90. reprinted in 3 MOORE ET AL., supra note 24, § 16 app. 05.
91. Id. 26 (d) (1993 amendment)
92. reprinted in 6 MOORE ET AL., supra note 24, § 26 app. 09.
93. Id. 26 (f) (1993 amendment)
94. reprinted in 6 MOORE ET AL., supra note 24, § 26 app. 09.
95. Id. 26 (b) (1) (2000 amendment)
96. reprinted in 6 MOORE ET AL., supra note 24, § 26 app. 10.
97. The full text of Rule 26 (b) (1) now provides: Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26 (b) (2) (C).
98. Id.
99. See id. 26 (b) (1) (2000 amendment)
100. reprinted in 6 MOORE ET AL., supra note 24, § 26 app. 10.
101. Id. 26 (a) (1) (A) (ii).
102. Id. 26 (f).
103. Id. app. form 35 (2006 amendment) (providing a form for reporting the results of the planning meeting required by Rule 26 (f), including the handling of discovery of electronically stored information) ;
104. see also id. app. form 52 (replacing form 35 effective Dec. 1, 2010).
105. Id. 16 (b) (3) (B) (iii).
106. See id. 26 (f) (2), (f) (3) (C) - (D).
107. Rule 26 (b) (2) (B) provides: A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26 (b) (2) (C). The court may specify conditions for the discovery.
108. Id. 26 (f) (3) (D).
109. Id. 16 (b) (3) (B) (iv).
110. See id. 26 (b) (5) (B).
111. See FED. R. EVID. 502 (d).
112. Thomas D. Rowe, Jr., Authorized Managerialism Under the Federal Rules-And the Extent of Convergence with Civil-Law Judging, 36 SW. U. L. REV. 191, 196 (2007).
113. FED. R. CIV. P. 16 (a) (1) - (3).
114. Id. 16 (b).
115. Id. 16 (b) (3) (A).
116. See id. 16 (b) (3) (B).
117. Id. 16 (c) (2).
118. Id.
119. 3 MOORE ET AL., supra note 24, § 16.02.
120. Richey, supra note 34, at 527.
121. Id. at 528;
122. see also Charles R. Richey, Rule 16: A Survey and Some Considerations for the Bench and Bar, 126 F. R. D. 599, 600 (1989).
123. FED. R. CIV. P. 16 (b) (3) (A).
124. See EMERY G. LEE III & THOMAS E. WILLGING, FED. JUDICIAL CTR., FEDERAL JUDICIAL CENTER NATIONAL, CASE-BASED CIVIL RULES SURVEY: PRELIMINARY REPORT TO THE JUDICIAL CONFERENCE ADVISORY COMMITTEE ON CIVIL RULES 9, 13 (2009), http://www.fjc.gov/public/pdf.nsf/lookup/dissurv1.pdf/$file/ dissurv1.pdf (noting that "[i]nformal exchange of documents was reported by a majority of respondents," and that more than 20 percent of those responding to the survey reported that a judicial officer took no action in discovery other than holding a conference to plan discovery) ;
125. WILLGING ET AL., SURVEY, supra note 18, at 13 (discussing informal exchanges of information) ;
126. cf. id. at 21 ("[T]he data suggest that problems in discovery may not differ so much by which form of discovery is used as they do by the nature of the case. Where a lot of money is at stake, where the issues involve personal injury or matters of principle, where the relationships are contentious and the issues complex, here we see more discovery and more problems with discovery.").
127. See, e.g., E. Donald Elliott, Managerial Judging and the Evolution of Procedure, 53 U. CHI. L. REV. 306, 314 (1986) (noting that opponents of managerial judging "argue that litigants are being forced, directly or indirectly, to abandon positions on the merits," that "judges are making discretionary procedural decisions early on that effectively close off lines of substantive inquiry without benefit of full development and consideration of the merits of the parties' positions," and that "the 'managerial' decisions of these judges are largely immune from appellate review") ;
128. Grace M. Giesel, Enforcement of Settlement Contracts: The Problem of the Attorney Agent, 12 GEO. J. LEGAL ETHICS 543, 548 n. 23 (1999) (noting that some commentators have "question[ed] the wisdom of judicial involvement" in settlements
129. (citing Stephen Bundy, The Policy in Favor of Settlement in an Adversary System, 44 HASTINGS L. J. 1, 58-78 (1992) ;
130. Carrie Menkel-Meadow, For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference, 33 UCLA L. REV. 485, 491-514 (1985) ;
131. Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 378-80 (1982) ;
132. Leroy J. Tornquist, The Active Judge in Pretrial Settlement: Inherent Authority Gone Awry, 25 WILLAMETTE L. REV. 743, 752-65 (1989))) ;
133. Resnik, supra, at 425-26, 430 (expressing concern that "[t]ransforming the judge from adjudicator to manager substantially expands the opportunities for judges to use-or abuse-their power"; that managerial judging "undermine[s] traditional constraints on the use of [a judge's] power," such as the need to provide written justification for decisions and the availability of appellate review; that "no explicit norms or standards guide judges in their decisions about what to demand of litigants"; and that "[h]aving supervised case preparation and pressed for settlement, judges can hardly be considered untainted if they are ultimately asked to find the facts and adjudicate the merits of a dispute") ;
134. Jeffrey W. Stempel, Reflections on Judicial ADR and the Multi-door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?, 11 OHIO ST. J. ON DISP. RESOL. 297, 360 (1996) ("Without further revisiting the debate on managerial judging, it should be sufficient to note that there are dangers of mistake, favoritism, or lax administration of justice when judges become managers, settlement impresarios, or active participants in the dispute rather than reasonably detached umpires of adjudication. ").