On November 5th, CCL Senior Litigation Counsel Valerie M. Nannery attended the meeting of the Advisory Committee on Civil Rules in Salt Lake City, UT, observing the proceedings on behalf of the American Association for Justice. At the meeting, the committee discussed publicity for the pending amendments to the Federal Rules of Civil Procedure, due to go into effect on December 1, 2015, absent action by Congress, as well as potential future amendments.

Much of the meeting focused on an extended discussion on the Rule 23 Subcommittee’s report and its “sketches” of potential amendments to Rule 23, which can be found in the Agenda Book for the meeting. After attending many events and hosting a “mini-conference” in September, the Subcommittee has narrowed its focus, and has moved some issues to the back burner. The Committee has taken a “settlement class” rule off of the agenda, and has put “ascertainability” and Rule 68 on hold. The Committee also approved taking cy pres and “issue classes” off of the agenda. The Subcommittee is focusing on six issues for potential amendments to be submitted for approval in Spring 2016: (1) Frontloading of issues to be submitted to the court before notice is sent to the class in cases involving a proposed settlement; (2) clarifying that an order directing notice to the class prior to certification of a settlement class is not appealable under Rule 23(f); (3) Clarifying that Rule 23(e)(1) notice triggers the opt-out period; (4) modernizing the rule concerning notice in (b)(3) classes to specifically include notice by electronic means; (5) revising the rules related to objectors to class action settlements; and (6) providing a condensed list of settlement approval criteria. The Advisory Committee will get feedback on these issues at the January 2016 Standing Committee meeting in Phoenix, AZ, and will revisit and potentially approve any proposed amendments to Rule 23 at its Spring 2016 meeting in Jacksonville, FL.

The Advisory Committee also engaged in a long discussion of pilot projects in civil litigation. The Committee discussed ways to implement pilot projects in federal courts, and which models to utilize. Some of these pilot projects involve increased mandatory disclosures and less discovery, short discovery cut offs and/or placing cases in “tracks” depending on their complexity. While “the charge for the subcommittee is to investigate pilot projects already completed in other locations and to recommend possible pilot projects for federal court,” several Advisory Committee members voiced the opinion that the purpose of studying pilot projects should be to propose new rule amendments implementing some of the procedures used in some pilot projects. While new rules to not appear to be in the offing at the moment, we could see proposed amendments on these issues in the future.

One of the members of the Committee brought up an article written by Professor Suja Thomas for Law360, and the letters she sent to judges and to the committees of the Judicial Conference of the United States, regarding the propriety of using the Duke Center for Judicial Studies’ “Discovery Proportionality Guidelines and Practices,” 99 Judicature, no.3, Winter 2015, at 47-60, to train federal judges on the interpretation of the amendments to Fed. R. Civ. P. 26(b), and the propriety of federal courts hosting events co-sponsored by the Duke Center and the ABA Section of Litigation, titled “Hello ‘Proportionality,’ Goodbye ‘Reasonably Calculated’: Reinventing Case Management and Discovery Under the ​2015 Civil Rules Amendments.” Federal judges and their clerks are invited to attend these events for free. The Duke Center’s Guidelines were also used at a training of federal magistrate judges by the Federal Judicial Center in the spring of 2015.

Several current and former members of the Civil Rules Advisory Committee participated in the Duke Center’s November 2014 “Bench-Bar-Academy Distinguished Lawyers’ Series” Conference on “Implementing the Proportionality Standard,” and also participated in the development of the Duke Center’s Guidelines, and will be panelists at the events co-sponsored by the Duke Center. The November 2014 Conference itself promoted the “key component” of the input of these federal judges, and said its stated goal was to “provide authoritative guidance on implementing the proportionality standard.” The current and former chairs of the Advisory Committee, and the chair of the Standing Committee responded that “the Duke guidelines and any presentation at the conferences do not come with the imprimatur of the Rules Committees,” and “The Duke Center, like other groups, is free to hold conferences or propose guidelines with respect to the rules or any other area of law. But they are not entitled to communicate, or suggest, that they bear the stamp of approval of the Rules Committees.” However, Professor Thomas’ article points out that the involvement of current and former members of the committees of the Judicial Conference in this private interpretation of the amendments makes the Duke Center’s process and its Guidelines appear “official,” even though they are not the law.