Representing the American Association for Justice at the Advisory Committee on Civil Rules meeting in Washington, D.C. April 9, CCL Senior Litigation Counsel Valerie M. Nannery observed reports on the progress of last year’s civil rules proposals and plans for new rules governing class actions.

Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit, and chair of the Committee on Rules of Practice and Procedure reported that the Supreme Court of the United States had approved the most recent set of rules proposals emanating from the committee, but requested a couple of changes to the Committee Notes that accompany the pending amendments to the Civil Rules. As is reflected in the Court’s transmittal to Congress, the Committee Notes to Rules 4 and 84 were changed from the last draft submitted for approval to the Judicial Conference.

The new Committee Note to Rule 4 makes clear that the reduction of the time for service from 120 days to 90 days “will increase the frequency of occasions to extend the time.” The original Committee Note stated that “Shortening the presumptive time for service will increase the frequency of occasions to extend the time for good cause.” This change ensures that district courts have the discretion to extend the time for service even when good cause for delay has not been shown.

The Committee Note on the abrogation of Rule 84 now says: “The abrogation of Rule 84 does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8.” This additional language appears to address the concerns of the overwhelming majority of those who commented on the abrogation of Rule 84 and most of the official Forms previously in the Rules.

The Advisory Committee also discussed plans for an unprecedented educational campaign to members of the bench and bar to encourage attorneys and judges to use and apply the amended rules, should they go into effect on December 1, 2015, which will occur unless Congress unexpectedly acts to stop them.

There was some discussion about the potential for “requester pays” discovery rules further down the line, although the Committee members appeared to agree to wait and see how the pending rule amendments change the landscape before further changes are considered. In response to the cost-shifting in discovery discussion, there was a suggestion that the Committee revisit mandatory disclosures under Rule 26(a)(1).

Finally, there was an extended discussion on the Rule 23 Subcommittee’s report and “conceptual sketches,” which can be found in the Agenda Book for the meeting. Many of the “conceptual sketches” are based on portions of ALI’s Principles of the Law of Aggregate Litigation. The members of the Advisory Committee gave a mixed response to several of the “sketches,” while other “sketches” did not garner much of a response. The Rule 23 Subcommittee is currently on a “listening tour,” discussing ideas for amendments to Rule 23 with groups of attorneys, academics and judges. They will be holding a “mini-conference” in Dallas-Fort Worth on September 11th, by invitation only.