Federal Rules Of Civil Procedure Research Articles

Can Litigation Analytics Tell Us What Became of the 2015 Proportionality Amendments to the Federal Rules of Civil Procedure? <br>

Can Litigation Analytics Tell Us What Became of the 2015 Proportionality Amendments to the Federal Rules of Civil Procedure? <br>

미국 연방 대표당사자소송과 주 대표당사자소송의 비교 연구

In this article, a class action under the federal rules of civil procedure and a class action under the state rules of civil procedure were compared. It is not virtually easy to compare all states, and I focused on the state of Missouri that adopted the federal rule on average, and the state of Mississippi that did not adopt a class action.
 Most states in the United States used the Federal Rules of Civil Procedure, with minor modifications, without major changes. In the case of Missouri, it was found that the federal rules were in fact used as they were and some of the requirements of the representative party were interpreted with some flexibility. On the other hand, Mississippi, when it enacted the state civil procedure rules in 1982, refused to accept class action system and operated its case law and statutory laws independently. As a result, many precedents regarding class action in Mississippi have been upheld : a class action without explicit statutes and provisions is impossible, a class action that existed before the 1980s in lower courts is not possible, and unlimited permissive joinder and consolidation that were substitutes for class action are rejected.
 Still, there were lessons to be learned from the case of Mississippi. First, in spite of no class action in Mississippi, most relief can be obtained through federal procedure. However, in the case of Mississippi's own human rights violations or small businesses in Mississippi, it is necessary to introduce a class action in the state.
 Second, the class action in Mississippi is very closely related to tort law reform. In particular, it is worth noting that proportional liability and limitation of liability introduced in the state of Mississippi should be considered as an alternative in order to expand the class action system in Korea. This means that it is necessary to balance what kind of discussions were made for the defense of the defendant while discussing class action and punitive damages for the relief of the plaintiff. At least in the case of companies with minor negligence, as a feasible method, it seems that the defendant should be sufficiently defended by assuming the case of faithfully fulfilling the duty of care.
 Third, the attempt to operate Rule 20(permissive joinder of parties) and Rule 42 (consolidation) of the Mississippi State Rules as a substitute of class action can be highly evaluated. This is because the attempt to quickly relieve small damages of large number of people in one procedure can be evaluated as an attempt to guarantee the citizens' right to access justice. However, this has fundamental limitations in relation to class action. In Rule 20 of the State Rule, it seems that it is difficult to define a class action only by the commonality of factual issues or legal issues, and the problem of conflict of interest is also difficult to resolve.
 In Korea, there is also a discussion on the addition of an ordinary co-litigation, but this is a problem that should be applied to an ordinary co-litigation, and it is not intended to be converted into a class action. However, although permissive joinder as the addition of an ordinary co-litigation is a legal doctrine that has been abandoned by the Mississippi state precedent, I think that the attempt to resolve collective disputes through permissive joinder is positive enough.

Lawyer Misconduct and Sanctions

This article deals with issues relating to lawyer misconduct and possible litigation sanctions under Rule 11 of the Federal Rules of Civil Procedure relating to filing of a lawsuit that is frivolous or in “bad faith,” and to actions that may be taken against an attorney for misconduct under the Model Rules for Lawyer Disciplinary Enforcement, either in the course of representation of a client or more generally in the attorney’s practice of law. This is the fourth in a series of articles relating to the “lawyer client relationship.”*

Bringing "Civil"ity into Immigration Law: Using the Federal Rules of Civil Procedure to Fix Immigration Adjudication

Bringing "Civil"ity into Immigration Law: Using the Federal Rules of Civil Procedure to Fix Immigration Adjudication

Can Litigation Analytics Tell Us Whatever Became of the 2015 Proportionality Amendments to the Federal Rules of Civil Procedure?

Can Litigation Analytics Tell Us Whatever Became of the 2015 Proportionality Amendments to the Federal Rules of Civil Procedure?

Digitalization of civil proceedings in the USA: consolidation of the procedure for electronic disclosure of evidence (“e-discovery”)

The article notes that electronic disclosure of evidence (“e-discovery”) refers to the disclosure of evidence during the pre-trial stage of court proceedings, such as civil proceedings (litigation) or government investigations, when the requested information is in electronic format. Electronic information is considered different from paper because of its immaterial form, volume, transience and impermanence. Electronic information is usually accompanied by metadata, which is not present in paper documents and which can play an important role as evidence. The main document that allowed the digitalization of US civil proceedings was the amendments of 2006 and 2015 to the Federal Rules of Civil Procedure governing the conduct of Court proceedings in US federal Courts. It is emphasized that one of the most hotly contested aspects of electronic disclosure of evidence has become the problem of electronic data security. The destruction of emails and other electronic data is as egregious and punishable by the court as the destruction of other documentary evidence related to a civil lawsuit. The decision in the case “Zubulake v. UBS Warburg” 2005 established important practices regarding “e-discovery”. In addition, this decision showed that various specialists can be involved in the project of electronic disclosure of evidence: lawyers of the parties, forensic experts, IT managers and office managers. In this regard, the comparative analysis of the above issues is of particular importance.

Driving Diverse Representation of Diverse Classes

Why have federal courts overwhelmingly appointed white men to represent diverse consumer classes? Rule 23(g) of the Federal Rules of Civil Procedure requires courts to appoint the attorneys “best able to represent the interests of class members” to serve as class counsel. But courts’ recurrent conclusion that white men best fit the federally mandated job description not only gives the appearance of discrimination, but harms class members that suffer from outcomes plagued by groupthink and cognitive biases. This Article sets out to uncover why white male repeat players continue to dominate class counsel appointments and proposes a practical and immediately implementable solution for the judiciary to improve class counsel diversity. The Article examines all class action auto defect multidistrict litigation suits. By focusing on this subset of cases that span across five decades, it observes potential tendencies of certain courts (i.e., white, Republican-appointed, and female courts) to appoint white men and identifies different processes and criteria courts have implemented and considered that have resulted in the appointment of more female and minority attorneys. The Article finds, however, that the gender and racial gaps remain stark, largely because courts understandably place an almost dispositive value on attorneys’ prior experience serving as class counsel, a role white men have traditionally monopolized. It proposes a way to resolve this Catch-22 problem—a two-tier joint appointment structure that collectively evaluates the experience and diversity of counsel and removes the insurmountable entry barriers to the plaintiffs’ counsel class action bar.

Excerpts from the Model Rules of Dating Procedure

Nearly thirty years have passed since the first major attempt at defining a “law of love.” Throughout that timeframe, many a first-year law student has struggled with the framework of modern American civil litigation, a framework exceptionally difficult to comprehend until it has been articulated in its entirety. At the same time, there exists an intersection between the processes of modern dating and civil litigation that has not been unpacked, a gap in the scholarly literature that this essay seeks to begin to fill. Simultaneously seeking to articulate the law of love to those inclined towards litigation and render civil procedure a more relatable construct to the starting law student, the crux of this essay is the notion that the Federal Rules of Civil Procedure more or less map onto a dating manual.

The Roberts Court and Lost ESI

John G. Roberts, Jr. was confirmed as Chief Justice of the U.S. Supreme Court in September, 2005. Since then, there have been two major changes in the Federal Rules of Civil Procedure (FRCP) involving losses of discoverable electronically stored information (esi). These changes address the duties of preserving some esi for federal civil litigation and the sanctions available for preservation failures. The changes were embodied in FRCP 37, once in 2006 and once in 2015. The current Rule 37(e) provisions have always been accompanied by other FRCP discovery provisions on esi, with some predating any version of Rule 37(e). To date, Congress has remained quiet on lost esi in federal civil actions. This article reviews the history behind, and all the current, FRCP provisions on esi, particularly the Rule 37(e) changes. It also reviews the proposed esi changes to Rule 37 in 2013 that were not adopted. These reviews will focus on how the FRCP has addressed and now addresses lost discoverable esi. These reviews are accompanied by an examination of state civil procedure laws on presuit and postsuit esi losses. State laws are examined as they suggest potential FRCP reforms. A brief survey of state spoliation claims, whether in tort, contract, or otherwise, follows because these claims can be pursued in federal courts for either presuit or postsuit esi losses impacting pending civil actions. All this will then serves as the basis for exploring significant issues on lost esi in federal civil actions. Such issues include the uncertainties arising from the FRCP distinctions between esi and nonesi, as well as between varying forms of esi; the challenges in pursuing state spoliation claims in related federal civil actions; and, the problems arising when discoverable esi is lost by nonparties. The explorations will lead to some tentative thoughts on FRCP reforms involving lost esi that would prompt greater justice, efficiency and economy, per the FRCP 1 mandate. Possible new approaches include FRCP amendments broadening the opportunities for presuit esi discovery and creating new avenues for presuit protective orders on behalf of those possessing or controlling relevant esi, perhaps modeled a bit on the recent Arizona Civil Procedure Rule 45.2.

Technology-Assisted Review: Changing the Discovery Game, Not the Discovery Rules

The Federal Rules of Civil Procedure, though adept at policing attorney misconduct and discovery failures, have struggled for decades to manage the deluge of potentially discoverable electronic information brought on by the Information Age. The volume of data has threatened to swallow the liberal discovery regime in delays and costs. The development of technology-assisted review (“TAR”) promises to help parties locate relevant documents more accurately and at lower cost than traditional human review. Despite garnering judicial approval, many courts have deterred TAR usage by imposing heightened disclosure requirements on parties who seek to use the technology. This Article argues that the discovery procedures in the existing Rules are well-equipped to handle TAR productions, and that preemptive, elevated disclosure requirements are an ill-advised deviation from the procedures established by the Rules. Rather than requiring preemptive disclosure, courts should encourage the unique opportunities TAR presents to effectively cooperate without sacrificing client privacy.

Whose Law is it Anyway? The Erie Doctrine, State Law Affidavits of Merit, and the Federal Tort Claims Act

In the wake of the tort reform movement of the 1970s, more than half of the states aimed to curb frivolous medical malpractice claims. Many states accomplished that goal by enacting statutes imposing pleading requirements on medical malpractice cases. The statutes require plaintiffs to file with their complaints an affidavit from a medical expert stating that the claim has merit. But because the Federal Rules of Civil Procedure do not impose a similar requirement, there is an ostensible conflict between the state law the Federal Rules when these claims are brought in federal court. Federal courts have been inconsistent in their analysis of this conflict. Some conclude that the state laws are substantive and should therefore apply in actions in federal court. Others conclude that there is an irreconcilable conflict between the state law and federal law, and thus federal law must prevail. And when the basis of a federal court’s jurisdiction is the Federal Tort Claims Act, another wrinkle emerges: should a court engage in an Erie analysis at all? This article addresses two distinct issues. First, it addresses whether a federal court exercising federal question jurisdiction should engage in an Erie analysis to determine whether a federal law should trump a conflicting state law. Second, it addresses whether there is a conflict between the state laws and the Federal Rules of Civil Procedure. The article concludes that a federal court should engage in an Erie analysis, and that the state statutes conflict with the Federal Rules and thus should not apply in an action brought in federal court. The article further offers a middle ground whereby the states’ substantive goal of dealing with frivolous medical malpractice claims expeditiously can, in some circumstances, still be vindicated.

The Last Lecture: State Anti-SLAPP Statutes and the Federal Courts

The federal courts have their own housekeeping rules in civil litigation: the Federal Rules of Civil Procedure. Under those rules, a plaintiff need not marshal evidence at the pleading stage, just a statement of facts showing her entitlement to relief. Discovery is generally available. Summary judgment only tests whether there are factual disputes necessitating a trial, and the trial court does not weigh any evidence. And there is generally no immediate right to appeal a denial of a dismissal motion. Those rules have governed federal court civil litigation for decades—without much fuss. Until now. Several states have enacted anti-SLAPP statutes to expeditiously dismiss free speech litigation. The acronym “SLAPP” stands for “Strategic Lawsuits Against Public Participation.” The most stringent anti-SLAPPs serve strong measures to achieve their ends: an accelerated dismissal motion soon after suit is filed; a complete stay of discovery; all the while, the plaintiff must, at the pleading stage, come forward with evidence to establish her prima facie trial burden; mandatory attorney’s fees and costs to the prevailing defendant; and an immediate appeal if a court denies the dismissal motion. By their design and effect, however, anti-SLAPP statutes operate differently than the Federal Rules of Civil Procedure. So far, the federal appellate courts have split on whether anti-SLAPPs (and their unique early dismissal regimes) can co-exist with the federal rules in diversity jurisdiction cases. The First and Ninth Circuits have embraced anti-SLAPP statutes, while the Second, Fifth, Tenth, Eleventh, and the D.C. Circuits—all have not. The U.S. Supreme Court has not yet weighed-in on this debate. This article adds four ideas to this complex area of law. First, we contend that Shady Grove Ortho. Ass’n v. Allstate Ins. Co., 559 U.S. 393 (2010) controls the anti-SLAPP applicability question. We contend that, properly understood, Shady Grove leaves no room for most anti-SLAPP statutes in federal court. Second, we delve into the preemption debate: do the Federal Rules of Civil Procedure preempt state civil procedural laws under preemption principles? Analyzing a recent six-justice ruling, we contend the U.S. Supreme Court thinks they do. Third, the article analyzes whether proponents of anti-SLAPPs are correct that the provision of attorney’s fees and the burden-shifting frameworks of anti-SLAPP laws makes them substantive for Erie purposes. We show that those claims are misplaced for most quintessential anti-SLAPPs, critiquing Ninth and Tenth Circuit anti-SLAPP jurisprudence. Finally, using Clifford v. Trump (tweet lawsuit) as a case study, we suggest a framework for principles of comity in inter-circuit splits about anti-SLAPPs.

Disrupting Frivolous Defenses

Judge Milton I. Shadur was a disrupter of frivolous defenses. In 2018, Judge Shadur died at the age of 93 after 37 years as a judge of the United States District Court for the Northern District of Illinois. Sua sponte, Judge Shadur reviewed civil answers, and disrupted the pleading of frivolous defenses. Sua Sponte Shadur—as some lawyers called him—rejected answers that departed from or ignored Rule 8 of the Federal Rules of Civil Procedure. In 2001, Judge Shadur issued an Appendix to an order in State Farm v. Riley, 199 F.R.D. 276 (N.D. Ill. 2001) with his expectations regarding how defense lawyers were to answer according to Rule 8 of the Federal Rules of Civil Procedure. As the Appendix makes clear, Judge Shadur disallowed pleaders to dodge Rule 8 by 1) claiming that an allegation called for a legal conclusion, 2) claiming that documents speak for themselves; and 3) demanding strict proof. Judge Shadur also expected that affirmative defenses (Or ADs, as he called them) would be true affirmative defenses and that defense attorneys would support affirmative defenses with foundational or predicate facts. The Appendix, now 20 years old, is living a rich life. Judges have cited Judge Shadur’s order and appendix 233 times. Litigants have cited the case 452 times in trial-court motions and filings as well as 14 times in appellate matters. Westlaw reports 52 citations in secondary sources and another 13 in a directory West calls “Practical Law.” After presenting a minibiography of Judge Shadur, the backstory of State Farm v. Riley, and a gloss on the Appendix, this article tracks Appendix use by federal judges throughout the United States. Specifically, the article focuses on legal conclusions, speaking documents, and affirmative defenses. The article organizes the cases by federal circuit. The organization should be interesting to academics and useful to attorneys preparing F.R.C.P. 12 motions to strike affirmative defenses, motions to deem allegations admitted, or motions for more definite statement. The article first covers the citation of the Appendix first by Judge Shadur himself, next by Northern District of Illinois colleagues, then within the broader Seventh Circuit, and finally outside his Circuit. Last are the few citations in state courts finishing, though, with the epitome of Shadur’s Appendix, which was a rule change by the Arizona Supreme Court in 2018, the year of Shadur’s death. Arizona’s Rule 8 now aligns with Shadur’s Appendix. This article meshes with the empirical analysis of my related article Frivolous Defenses. In that piece, I examine car-crash answers and complaints in the state courts of Colorado, where I live, teach, and have practiced law. For 298 lawsuits, I retrieved and read the complaints and corresponding 356 answers, which number more than 298 because a number of suits had multiple defendants. Frivolous Defenses examines the departures from Colorado’s Rule 8 using, among other things, Judge Shadur’s Appendix and analysis. I welcome comment and suggestions by professors, attorneys, and judges concerning either of these articles.

Brave New World: Technology and Tort Practice

I am a civil procedure person, not an official torts person, but fairly often torts and civil procedure seem to be joined at the hip. And that seems particularly true with regard to the effects of technological change on tort litigation practice. I’ve been working on the Federal Rules of Civil Procedure for more than twenty years and find that it’s usually the torts cases that are the focus of the most intense disputes regarding procedure issues. For this Symposium, I intend to focus on five topics, but the last one is mainly an advertisement for the second panel at the Symposium: (1) E-Discovery (2) The more general impact of technology on torts practice (3) The growing importance of technology on manner of proof (4) The MDL “boom” (5) TPLF -- third party litigation funding

A Right to Privacy for Modern Discovery

Recently, the Supreme Court found that a person has a Fourth Amendment right to privacy in historical cell phone records because of the comprehensive nature of the compilation they provide. As with detailed, encyclopedic GPS information, the nature of these chronicles of their users’ lives implicates privacy despite the traditional notion that a person lacks a privacy interest in his or her location or movements. The comprehensive nature of that location information also led to the Court’s rejection that the information lost its private nature because it was in the hands of a third party. The view that individual pieces of information which would not implicate privacy transform into a “mosaic” when compiled into a broad picture of an individual’s life over a span of time, was first expressed by the Supreme Court in 1989 in the context of a FOIA exemption. The Court found that, despite the fact that individual items of a person’s “rap sheet” are publicly available, their combined power when gathered together into a single, comprehensive dossier deserves privacy protection. These decisions have direct relevance to privacy in another realm that is being tested by changes in technology: civil discovery. Here too the nature of discovery itself is very different from a pre-digital set of communications or files in the hands of a litigant. Discovery now includes information prepared automatically by a device that the litigant wears or carries. It includes records of all manner of interactions with websites and applications, and implicates health, finances, sexuality, and other aspects of a litigant’s life. In addition, there is clear precedent for protecting civil discovery when requests implicate federal statutory protections like FOIA’s exemptions. This article analyzes caselaw reaching back to the adoption of the Federal Rules of Civil Procedure to find a strong precedent for protection of privacy in discovery based on Supreme Court doctrine and public policy represented in federal and state statutes. The article traces this history to current subjects of e-discovery – cell phone data, social media content, wearable devices and so on – whose scope and subject matter implicate broad privacy concerns. Recent Supreme Court doctrine adopting the mosaic theory of privacy has direct application to discovery requests for modern digital chronicles of a person’s life.

Closing the Enforcement Gap: Third Party Discovery under the FAA and the Federal Rules of Civil Procedure

Procedural flexibility and the prospect of a shorter and cheaper dispute resolution process have made arbitration one of the most common mechanisms for resolving commercial disputes in the United States. At the same time, parties should be aware of procedural and evidentiary issues that may arise in arbitration and that have yet to be resolved by the courts. This article examines one such issue, namely the scope of arbitral power to issue pre-hearing subpoenas to third parties pursuant to the Federal Arbitration Act. Federal circuit courts are split as to whether this power is available to arbitrators, with the majority judicial view adopting a restrictive interpretation of the Act and arbitral power. This split sends mixed signals to parties, counsel, and arbitrators, frustrating the objectives of the Act. The article proposes a novel rationale for a more flexible judicial approach. The article argues that the dominant narrow interpretation, when combined with a strict application of geographic limitations under the Federal Rules of Procedure with respect to compliance with subpoenas, may make enforcement of arbitral subpoenas to third parties impossible. The article then proposes several ways in which this enforcement gap may be overcome.

Neoliberal Civil Procedure

This Article argues that the current era of U.S. civil procedure is defined by its neoliberalism. The Supreme Court has over the past few decades reinterpreted the Federal Rules of Civil Procedure in ways that place barriers in the way of citizens seeking to bring civil claims. The major decisions of this new era—in areas as diverse as summary judgment, pleading, class actions, and arbitration—exhibit neoliberal hallmarks. They display neoliberalism’s tendency to naturalize existing market arrangements, its focus on efficiency and obscuring of questions of power, its reduction of citizens to consumers, and its attempt to analyze government through the lens of market-modeled concepts. As the Court’s procedural decisions make it increasingly difficult for citizens to bring claims enforcing regulatory law—including antitrust, antidiscrimination, consumer protection, and worker protection law—the Court’s neoliberal orientation lurks in the background and helps to explain procedure’s modern progression. In order to fully appreciate, critique, and potentially move beyond the current era of U.S. civil procedure, it is important to understand the neoliberal logic that drives it—and the logics and values it obscures and sidelines.

Proposed Amendment to the Federal Civil Procedure Rule 27(c): Federal Presuit Information Preservation Orders

Professor Jeffrey A. Parness submitted a proposed amendment to Federal Civil Procedure Rule 27(c) on November 13, 2020. It urged that federal civil procedure laws allowing presuit information preservation orders should be expanded in order to promote greater uniformity across the country and greater compliance with current substantive and procedural laws on the preservation duties involving civil litigation information. These new laws were said to be best placed in the Federal Rules of Civil Procedure. The proposal includes the rationales, some guidelines, and suggested language for a new FRCP 27(c). In particular, the proposal suggests the following language (additions underlined): This rule does not limit a court's power to entertain an action to perpetuate testimony and an action involving presuit information preservation when necessary to secure the just, speedy, and inexpensive resolution of a possible later federal civil action.

Oklahoma

In Naylor Farms, Inc. v. Chaparral Energy, LLC, the plaintiff royalty owners (collectively, Naylor Farms) contended that Chaparral systematically underpaid royalties on production from approximately 2,500 Oklahoma oil and gas wells by improperly deducting from royalty payments certain costs that the plaintiffs contended should have been borne solely by Chaparral under Oklahoma law. The district court granted Naylor Farms’ motion seeking certification of a class of royalty owners under Rule 23 of the Federal Rules of Civil Procedure. In the present proceedings, Chaparral has appealed the district court’s order granting class certification.

Civil Procedure Law Professors' Brief Amicus Curiae in Support of Plaintiffs-Appellants, Douglass v. Nippon Yusen Kabushiki Kaisha (5th Cir. No. 20-30382)

Amicus Curiae Brief on behalf of Professors Helen Hershkoff, Arthur R. Miller, Alan B. Morrison, John E. Sexton, and Adam N. Steinman This appeal raises an important question regarding Rule 4(k)(2) of the Federal Rules of Civil Procedure, which provides for personal jurisdiction for claims based on federal law when no state court would have jurisdiction. This brief argues that the district court mistakenly held that the Due Process Clause of the Fifth Amendment, which applies to the federal courts, imposes the same constraints on federal courts as the Due Process Clause of the Fourteenth Amendment, which applies to the state courts. In the view of amici, that ruling was not only in error, but, if upheld, would render Rule 4(k)(2) a virtual nullity. Amici provide the Court with a reading of Rule 4(k)(2) that properly authorizes jurisdiction for federal law claims when a non-US defendant does systematic and continuous business in the United States, and when that business relates generally to the plaintiffs’ claims, as is the case here.