The 2015 Civil Rules Package As Transmitted to Congress

Abstract

THIS article provides an overview of the of amendments to the Federal of Civil Procedure, which were collectively forwarded to Congress for evaluation this spring. A copy of the text of each of the proposals is included in the Appendix to this article. The amendments will become effective on December 1, 2015 if Congress does not adopt legislation to reject, modify, or defer them. (1) I. History of the Amendments A. Background The amendments to the Federal of Civil Procedure, which were collectively forwarded to Congress by the Supreme Court on April 29, 2015, (2) culminated a four-year effort by the Civil Advisory Committee (the Rules Committee) operating under the supervision of the Committee on of Practice and Procedure of the Judicial Conference (the Committee). The process began with the 2010 Conference on Civil Litigation held by the Committee at the Law School (the Conference). The Conference was held in response to concerns about the costs of litigation, especially discovery and e-discovery. (3) A number of studies, surveys and empirical studies were submitted in advance, and panels discussed the relevant issues. (4) Key takeaways from the Conference included the need for improved case management, application of the long-ignored principle of and cooperation among parties in discovery. (5) In addition, an e-discovery panel reached a consensus that a rule addressing preservation (spoliation) would be a valuable addition to the Federal of Civil Procedure. (6) The Committee divided the task of developing individual rule proposals between the Duke Subcommittee, chaired by the Hon. John Koeltl, and the Discovery Subcommittee, subsequently chaired by the Hon. Paul Grimm. The Discovery Subcommittee focused on a replacement for Rule 37(e). (7) Both subcommittees vetted alternative draft rule proposals at mini-conferences. An initial of the proposals resulting from these efforts was released for public comment in August 2013. (8) After a robust public comment period, the subcommittees recommended revisions, which were adopted by the Committee at its April 2014 meeting in Portland, Oregon. The Standing Committee unanimously approved the revised proposals at its May 29, 2014 meeting. The revised proposals were then submitted with recommendations for approval to the Judicial Conference, (9) which approved the rules on their consent calendar and forwarded them to the Supreme Court for its review. (10) The Supreme Court adopted the proposed amendments without change and forwarded the full package to Congress after having suggested certain minor changes in several Committee Notes. (11) B. Hearings and Public Comments The Committee conducted Public Hearings on the initial proposals in late 2013 and early 2014 that involved 120 testifying witnesses. (12) The first hearing was held by the Committee in Washington, D.C. on November 7, 2013 and was followed by a second hearing on January 9, 2014 in Phoenix, and a third and final hearing on February 7, 2014 at the Dallas (DFW) airport. In addition, the Committee received over 2,300 written comments. (13) Lawyers for Civil Justice (LCJ) (14) and the American Association for Justice (AAJ, formerly ATLA) provided expansive comments. (15) The AAJ urged rejection of rules that added proportionality factors to the scope of discovery, imposed reduced presumptive limits and made sanctions less likely in instances of spoliation, whereas LCJ supported limiting sanctions, adding proportionality to the scope of discovery, acknowledging cost-allocation and making reductions in presumptive numerical limits on use of discovery devices. Individual comments were submitted by representatives of corporate entities and affiliated advocacy groups and law firms as well as attorneys and representatives of plaintiff advocacy groups for individual claimants. …