Lawyers for Civil Justice (LCJ), DRI – The Voice of the Defense Bar, the Federation of Defense & Corporate Counsel (FDCC), and the International Association of Defense Counsel (IADC), today announced a new impetus for a fundamental review of the Federal Rules of Civil Procedure by submitting a white paper, Reshaping the Rules of Civil Procedure for the 21st Century, to the 2010 Conference on Civil Litigation beginning today at Duke Law School.
The white paper, subtitled “The Need for Clear, Concise, and Meaningful Amendments to Key Rules of Civil Procedure,” represents the consensus of the defense bar on major problems facing the federal courts now and in the future. It encourages the Federal Judicial Conference Rules Committee, sponsor of the conference, to move forward with meaningful amendments to the rules to help solve those problems.
According to LCJ President John H. Martin, “The white paper calls for a comprehensive reevaluation of the existing rules governing litigation in the twenty-first century.” He explained, “More than just tinkering at the edges of the rules is needed, and fundamental reforms are in order to improve the administration of justice in the federal courts.”
The submission of the LCJ white paper follows on the heels of two significant U.S. Supreme Court decisions, Twombly and Iqbal, which recognized that under the present system of notice pleading and broad discovery, the federal courts were failing in key ways to ensure the just, speedy and cost-effective determination of every action. The paper also builds upon the findings of the joint project of the American College of Trial Lawyers (ACTL) and the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver that, “although the civil justice system is not broken, it is in serious need of repair.” The white paper was developed with broad input from almost 100 corporate and defense counsel and will be presented to the Duke Conference by Bruce Parker of Venable LLP.
The white paper references diverse stakeholders in the federal civil litigation process who want systemic reform of the Federal Rules of Civil Procedure. It states that necessary reforms cannot be left to sporadic and potentially inconsistent ad hoc holdings by various courts deciding cases before them. Courts acting individually face practical and institutional limitations that prevent them from making the needed systemic changes to inter-related rules. Broad-based policy and rule reform are necessary.
The white paper outlines the need for systemic reform in four important areas:
- Pleadings - It recommends implementation of the realistic pleading standard in Twombly and Iqbal to include more than mere notice pleading.
- Limited Discovery - The paper proposes a rule that limits the scope of discovery to the claims and defenses in the action.
- Preservation - The rules should be amended to permit spoliation sanctions only where willful conduct for the purpose of depriving another party of the use of the information results in actual prejudice to the other party.
- Cost Allocation - Runaway discovery costs require specific cost allocation provisions that require each party to pay the costs of the discovery it seeks.
In the white paper, the LCJ, DRI, FDCC and IADC jointly call for a comprehensive reevaluation of the existing rules governing litigation in the twenty-first century, including attempting to redefine and balance the interrelationship of pleading and discovery, reevaluating the premises and focus of discovery, further refining the treatment of e-discovery, developing clear preservation standards, and deterring runaway litigation costs by reasonable cost allocation rules. It is not just the individual litigants in a particular case that are impacted by today’s litigation problems. Indeed, these problems affect the courts applying the rules, the attorneys interpreting those rules and counseling their clients, and the members of society who need a system of civil justice that provides meaningful, accessible, and affordable dispute resolution.
LCJ and its members hope to shape this important debate by providing the corporate and defense perspective to the policymakers at the earliest possible time.
For more information, please see the following documents:
FRCP White Paper: Reshaping the Rules of Civil Procedure for the 21st Century
Litigation Cost Survey of Major Companies (2010)
IADC Defense Counsel Journal President’s Page (January 2010): The Need for Discovery Reform