Monday, August 17, 2009

Federal Rules Counter-Revolution

A report issued this spring by the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System, made a number of recommendations that would reverse many of the most basic reforms of the Federal Rules of Civil Procedure. These include replacing notice pleading with fact-based pleading, a change that the Supreme Court is already well on its way to imposing (see this post); more flexibility in the rules for different kinds of cases; new summary adjudication procedures; and substantial limitations on discovery, which the authors themselves call their most "radical proposal."

To appreciate the change in direction that these recommendations would represent, it is useful to remember the thinking behind the Federal Rules of Civil Procedure when they were adopted back in the 1930's. One idea was to replace archaic and complicated pleading rules, that caused much litigation, with modern, simplified pleading rules. The concepts of causes of action and demurrers would be abolished. Technical pleading requirements would be abandoned in favor of allowing short statements of the claim that were merely intended to give the defendant notice of what the case was about. As these concepts have evolved over the years, however, outmoded pleading concepts seem have crept back into practice. Demurrers may have been abolished, but 12(b)(6) motions as to individual claims are allowed, and courts have also permitted motions for "partial summary judgment," which do not appear in the rules, as another means of reviving the function of the abolished demurrer. Short and plain statements of the claim have gotten longer and more convoluted, and the courts now expect substantially more than notice pleading. The ACTL and IAALS report would wholly abandon the original idea of the Federal Rules to simplify the early stages of litigation, in favor of even more beefed-up pleading requirements presumably designed to weed out weak cases at the pleading stage, instead of opening them up to expensive discovery proceedings.


As to discovery, the original idea of the Federal Rules, that discovery should be essentially open-ended, was also supposed to simplify prior practice and make it more fair. If all conceivably relevant information were made discoverable, that was supposed to eliminate battles over discovery, and encourage parties to share information freely. As practically everyone recognizes, discovery has not worked out that way at all. Particularly with the advent of electronic data, almost everyone would agree that the process is too expensive, too contentious, and too time-consuming, well beyond the useful purposes of exchanging information that is needed for trial. This report is correct to focus on curtailing the abuse and expense of discovery, and its central concept of proportionality in discovery is an important concept. I question, however, whether the report's more detailed recommendations on limiting discovery will truly serve the purpose of curtailing wasteful discovery, or whether they will provide new opportunities for battling over new issues. The report makes 11 pages of recommendations on discovery, demonstrating that its own proposed solutions may generate as much complexity as the current system. I agree with the ideas of proportionality and limitations on discovery, but instead of such detailed limitations, I would rather see a drastic simplification of the discovery rules. My proposal, discussed in an earlier post, would eliminate all rules on discovery with a single rule saying something like: "Parties are permitted only such discovery as they may obtain by agreement, or as the court allows." The idea would be to encourage negotiated solutions to discovery issues, and to replace the motion to compel with more simplified requests to the court to allow reasonable additional discovery.

In general, I would prefer to see reform take more of the shape of the original Federal Rules: a dramatic simplification and streamlining of the rules of procedure, designed to reduce the unnecessary issues that parties often litigate about. After 70 years of cluttering up the original Federal Rules with more and more complicated and arcane procedures, it is probably a good idea to try to start fresh.

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