Rule changes push for cooperation in federal civil litigation

The federal judges behind amendments to the Federal Rules of Civil Procedure want lawyers to work together and keep the costs of litigation down, and they hope the changes will promote a culture shift among practitioners.

“This is meant to be a cooperative and collaborative process,” Judge John G. Koeltl said Friday at a presentation at the University of Baltimore School of Law. “The amendments attempt to encourage that process.”

The revised rules went into effect in December. Friday’s event brought judges who participated in the five-year process of amending the rules as well as practitioners and academics together to discuss the rationale behind the changes and the federal judiciary’s overall goals.

“Cooperation is not capitulation,” Maryland U.S. District Judge Paul W. Grimm said to skeptics. “We’re not expecting everyone to embrace and sing ‘Kumbaya.'”

The first change is to Rule 1, the scope and purpose of the rules, which requires the parties as well as the court to employ the rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Early and active judicial case management is key to accelerating the pace of litigation, according to Koeltl, who sits in the Southern District of New York. That includes making sure parties have honest discussions in the early stages of a case about what they will be seeking in discovery.

Judges can tailor a scheduling order to the needs of the parties, but Rule 16(b)(1) encourages interaction between the parties and the judge early through “direct simultaneous communication. The amendments also decrease the time to issue a scheduling order after the conference from 120 days to 90 days.

Judges will be key to making sure the rule changes have an effect on how lawyers practice because many attorneys have been taught to be obstructionist, said panelist Timothy F. Maloney.

“The rules really seek to change the attitudes and the culture of the practice,” said Maloney, of Joseph, Greenwald & Laake P.A. in Greenbelt.

Grimm acknowledged there will be disputes between parties, but judges must show litigators that obstructionist tactics will not be tolerated.

“It doesn’t take many phone calls before the lawyers figure out it isn’t worth it,” he said.

Affecting the changes envisioned by the rules committee is a multi-front issue but Koeltl emphasized teaching law students to have collaborative attitudes.

“Students have to be taught that this is the way good lawyers practice not only because it’s in the rules but because it’s really the best way to practice,” he said.

Proportional discovery

The amended rules also shift some of the language involving discovery to emphasize proportional discovery in relation to the actual needs and resources of the litigants.

Provisions in Rule 26(b)(1) were relocated from Rule 26(b)(2)(C)(ii), where feedback indicated lawyers felt like they were buried and therefore ignored, according to Koeltl.

Attorneys are skeptical of whether the changes would lead to the desired outcomes, according to UB Law professor Dionne Koller, particularly academics who questioned the impact on access to justice.

Koller said there is a debate about how out-of-control discovery costs are in proportion to the stakes of the litigation but if there is even a perception that federal litigation is big and expensive, that serves as a barrier.

Baltimore lawyer Cy Smith said attorneys can try to bring discovery back into balance by picking their battles and not stonewalling opposing counsel.

If you are the attorney facing a proportionality challenge, offer some solution, such as producing a smaller subset of the requested information, according to Smith, of Zuckerman Spaeder LLP in Baltimore.

Koeltl and Grimm echoed Smith’s recommendation.

Koeltl said judges see more lawyers think about how they are conducting themselves in litigation.

“Everyone concedes that cooperation can improve litigation,” he said. “Bickering drives up the cost and is ultimately unproductive.”

Retired District of Columbia Magistrate Judge John M. Facciola also spoke about changes to the rule on spoliation of electronically stored information subject to discovery. Rule 26(f) now requires preservation of electronically stored information be discussed at a conference between the parties to formulate a discovery plan.

Failure to preserve information obstructs the administration of justice, according to Facciola, and offenders can be punished for gross negligence as well as intentional and knowing destruction of that information.

The rule requires reasonable steps be taken to preserve information and only applies when information is completely lost, not if it can be restored or replaced from another source.

Grimm said if the information is lost and there is prejudice, the court has flexibility to determine the appropriate sanction.