News

     Members of the ABA House of Delegates approved two resolutions as ABA policy in which CCL's Robert S. Peck played a key role. The first enacted new model rules for the governance and operation of legal referral programs, and the second reaffirmed existing ABA policy limiting the payment of legal fees to non-lawyers. 

      The first resolution, originally proposed but withdrawn in February, updated decades-old rules concerning legal referral projects. However, as proposed, the new rules would have permitted for-profit, non-lawyer legal referral programs to share contingency fees earned by the lawyers who received the referral, while imposing none of the client confidentiality or conflict of interest rules applicable to lawyers. In addition, the proposed rules had a weak transparency provision for the algorithms used by online legal platforms. Based on an amendment drafted and moved by Peck, the model rules now have a prohibition against fee-sharing with non-lawyer legal referral programs and a more demanding transparency requirement. 

       Peck was also one of the leaders of a group that proposed a reaffirmation of a 2000 policy adopted by the ABA in the face of efforts to expand fee-sharing with non-lawyers. That policy passed unanimously after opponents of the resolution agreed to an amendment that also reaffirmed a policy encouraging innovation in building greater access to justice. Peck explained that the resolution he supported did not threaten innovation or access to justice, a key part of his practice, but that permitting large corporations to practice law or take over legal practices would not benefit people in need of legal help. With agreement on the amendment, opposition evaporated, and the resolution passed. 

     CCL President Robert S. Peck told an en banc panel of 17 judges in the Fifth Circuit that the application of an "at-home" requirement as a matter of due process renders Federal Rule of Civil Procedure 4(k)(2) a nullity and unconstitutional in all its applications during oral argument in Douglass v. NYK Line. A federal district court in New Orleans had thrown the case out because it held that a 2016 precedent in that circuit had added the "at-home" requirement. After a panel upheld the ruling based on that precedent but urging the Court to rehear the case to reconsider the 2016 ruling, the court granted a petition to rehear en banc to do just that.

     The case arose after a larger container ship operated by a Japanese company struck a U.S. Navy destroyer in the Sea of Japan, resulting in the deaths of seven U.S. sailors and injuries to 40 others. Representing the injured parties, along with the Koonz McKinney law firm of Washington, DC, Peck explained that Rule 4(k)(2) was adopted, with the agreement of the Supreme Court and the Congress, to address precisely these situations. It provides federal personal jurisdiction over defendants in federal causes of action where no state court can assert jurisdiction over the parties. To satisfy due process, all that is required are sufficient continuous and substantial contacts on a national basis, Peck said. However, no defendant can be "at home" in the United States and still not be subject to state-court jurisdiction.

    Peck further argued that the rule has especially important application in admiralty cases, like this one, where U.S. courts have exercised jurisdiction over the course of more than two centuries as a function of international law applicable to maritime nations. 

    The case now is under advisement, awaiting decision by the 17-judge court.

CCL opposed proposed amendments to the Federal Rules of Appellate Procedure that would reduce the length of appellate briefs by 1,500 words in comments filed February 11.  The proposal would change the conversion rate from 280 words per page to 250. Contrary to assertions made by proponents, lowering the limit will not result in better briefing. The more likely consequence would be an increase in motions to exceed the limit, resulting in more work for both counsel and the courts. CCL also pointed out that the lower word limit would disproportionately impact amicus curiae briefs, which must include a statement of interest and other elements that go against the word count.

CCL’s comments supported proposals to covert page limits into word limits and to add provision for amicus briefs during an appellate court’s consideration of petitions for rehearing or rehearing en banc. CCL suggested that the proposed deadline for such briefs should be extended from 3 days to one week after the party has filed the petition for rehearing. In addition, CCL argued that the proposed limit of 2,000 words is unrealistic. CCL also suggested that the amendment to Rule 29 be broadened to make provision for amicus briefs at a subsequent consideration of the merits.

Finally, CCL did not oppose amending Rule 4(a)(4)(a) to clarify that post-judgment motions made outside of the time limits of the Civil Rules are not “timely,” and thus cannot toll the time for filing a civil appeal.

CCL’s comments were prepared by Senior Litigation Counsel Jeffrey R. White.

CCL’s Valerie M. Nannery attended the Spring meeting of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (“Standing Committee”) in Washington, DC on May 29th and 30th. On the first day of the meeting, the Standing Committee took up proposed amendments to the Federal Rules of Civil Procedure, discussed previously here and here. The chair of the Civil Rules Advisory Committee, Judge David Campbell, presented a couple of additional changes to the Committee Notes for Rule 26 and Rule 37(e), but the proposed amendments to the text of the rules were the same as those approved by the Advisory Committee at its meeting last month in Portland, OR.

After some questions from several members of the Standing Committee, the proposed changes to the rules of discovery and several rules on case management were approved by the Standing Committee by a unanimous vote. The proposed changes to Rule 37(e) were discussed at length on both days of the meeting, and the Standing Committee unanimously approved the proposed amendment with minor modifications to the text. The proposed amendments approved by the Standing Committee would redefine the scope of discovery, reduce the time to serve a summons and complaint, abrogate most of the Official Forms, and change the standard in several federal circuits governing the types of measures a court may use to remedy a party’s failure to preserve electronically stored information.

The next step for the Civil Rules amendments is consideration by the members of the Judicial Conference of the United States in September 2014. The Judicial Conference can approve or reject any of the recommendations of the Standing Committee, or send them back to the Committee for additional consideration.

Last summer, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States published numerous draft amendments to the Federal Rules of Civil Procedure for public comment. During the six-month comment period, the Advisory Committee on Civil Rules received more than 2,000 written comments, and heard from more than 120 witnesses at three public hearings. Attorneys at CCL attended each of public hearings and reviewed all of the written comments, and prepared a preliminary report summarizing the public commentary on the proposals, which was released today. The report estimates the number of comments on specific proposals, as well as comments on the package of proposals generally, and examines the types of commenters on the proposed amendments.

The preliminary report demonstrates that the response to the proposed amendments was overwhelmingly negative on most of the proposals. The negative response came from a wide array of commenters including members of the plaintiffs’ bar, as well as attorneys and non-profit organizations that represent individuals and small businesses against larger entities like corporations and governments in a variety of civil litigation, including civil rights, employment, consumer rights and environmental justice cases. A large number of law professors, more than two dozen members of Congress, and several current and former federal judges also opposed many of the proposals, including the proposal to incorporate “proportionality” into the definition of the scope of discovery. More than two-thirds of the comments on the proposed addition of “proportionality” into the scope of discovery opposed the amendment.

Despite the strong opposition articulated to many of the proposals, the Advisory Committee on Civil Rules unanimously recommended the adoption of several draft amendments, including the change to Rule 26(b)(1) that would add “proportionality” to the scope of discovery, with some revisions to the published version of the text and Committee Note. The Standing Committee will consider this recommendation at its next meeting on April 29th and 30th in Washington, DC.

CCL’s supplemental comments on the proposed amendments are available here.

Questions about CCL’s Preliminary Report should be directed to Valerie M. Nannery, Senior Litigation Counsel.

CCL Senior Litigation Counsel Valerie Nannery attended the April 10 and 11 meeting in Portland, Oregon of the Advisory Committee on Civil Rules, which develops civil rules proposals for the  Judicial Conference of the United States. The most recent round of proposals, which were approved at the meeting, focuses largely on the rules governing discovery. The package, put out for public comment last August, generated a record 2,300 comments and significant controversy.  At the Portland meeting, and in response to the comments, the Advisory Committee voted unanimously to withdraw proposed presumptive limits to the number of depositions, interrogatories, and requests for admission. In addition, revisions of a proposal that would add a requirement of proportionality to the rule governing the scope of discovery were approved. In the newly approved version, the “amount in controversy” factor no longer is listed first, in order to deemphasize the factor, and a new factor – the “parties’ relative access to relevant information” was added to address situations where the defendant has the only access to information essential to the plaintiffs’ case. An expanded Committee Note, which is intended to guide courts in implementing the rule, explains that the use of the term “proportionality” within the rule is merely an attempt to reflect existing requirements without changing the scope of discovery. The Advisory Committee indicated that the changes improved the proposed rule and were a product of the incisive comments received from practitioners. Finally, the Advisory Committee approved a substantially rewritten rule governing a party’s failure to preserve electronically maintained information.

The approved proposals will next be reviewed at a meeting at a meeting of the Standing Committee in May. If that committee approves, it then moves on to the Judicial Conference, which meets in September.

In preparation for the Advisory Committee meeting April 10-11, 2014 in Portland, Oregon, CCL's Valerie Nannery filed additional comments opposing the proposed amendments to the Federal Rules of Civil Procedure.  These comments focus on several of the remaining recommendations that are problematic and do not adequately respond to the comments and testimony that largely opposed the draft amendments.  The comments may be read here.

More than 2,300 public comments were submitted, and more than 120 witnesses testified at three public hearings on the proposed amendments to Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and Appendix of Forms of the Federal Rules of Civil Procedure that were published on August 15, 2013. Attorneys at the Center for Constitutional Litigation, P.C. (“CCL”) attended all three public hearings, reviewed the transcripts, and reviewed all of the written comments on the proposed amendments.

Today CCL released the summary of its Preliminary Report on the comments on the proposed amendments to the Federal Rules of Civil Procedure: The Comments by the Numbers. The summary estimates of the number of written comments and witnesses who testified, and which proposals they supported or opposed. The overwhelming majority of the written commentary opposed most of the proposed amendments. There was a particularly large amount of opposition to the proposed changes to the scope of discovery and to the presumptive numeric limits on discovery devices. The majority of the comments on the proposed reduction in time for service, the proposed explicit authorization of allocation of discovery costs, and the proposed abrogation of Rule 84 and most of the Official Forms opposed those proposals. The opposition to these proposals did not come only from plaintiffs’ lawyers and organizations of plaintiffs’ lawyers, but from a large number of academics, several current and former federal judges, numerous legal aid providers, civil rights groups, consumer rights groups, and from members of Congress.

The Advisory Committee meets April 10-11, 2014 in Portland, Oregon to decide whether to recommend that the rules be adopted. The Agenda Book for the meeting is here.

CCL’s summary (corrected 4/10/14) is here. The Preliminary Report will be posted when it is released.

This past Friday, two CCL attorneys, Andre M. Mura and Valerie M. Nannery, filed comments opposing most of the proposed amendments to the Federal Rules of Civil Procedure, which were published for public comment on August 15, 2013. Mr. Mura’s and Ms. Nannery’s comments encourage the Committee on Rules of Practice and Procedure to reconsider the majority of the proposed amendments, and highlight a few specific proposals that are especially problematic.

The proposed amendments to Rule 26(b)(1) would eliminate language that has been in the rule and understood by litigants and courts since 1946. The proposals would also add a “proportionality” analysis to the definitions of the scope of discovery, rather retain it in Rule 26(b)(2)(C)(iii), as one of several limitations on the scope of discovery. These changes have troubled commenters and witnesses because they redefine the scope of discovery and are explicitly intended to narrow it. CCL’s comments explain that restricting the scope of discovery will only harm plaintiffs who seek evidence to support their claims, and will thwart access to justice. CCL suggests that the Committee leave the “proportionality” analysis where it is in current Rule 26(b), and instead explicitly reference it in Rule 16, and require that the proportionality concept be made a part of judicial management. 

CCL’s comment also highlighted problems with the proposed amendments to Rules 4(m) Service of Process, 37(e) Failure to Preserve Discoverable Information, and the abrogation of Rule 84 and most of the Forms.

You can read CCL’s recently-filed comments here: http://www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-1535

The closing of the comment period on the proposed Rule changes was extended to tonight, February 18, 2014 at 11:59pm EST. Comments may be submitted electronically here.

Previous coverage of this issue can be found here and here on November 7, 2013, and on June 10, 2013, and April 17, 2013.

On December 5-6, CCL’s Andre M. Mura participated in a forum on the proposed amendments to the federal rules of civil procedure hosted by the Institute for the Advancement of the American Legal System (IAALS) in Denver, Colorado. The forum, according to IAALS, sought to “capture comment, critique, and suggestions from a diverse and experienced group of Federal Court practitioners” regarding the proposed amendments. These amendments would, among other things, limit the scope of discovery; further reduce the presumptive limits for discovery tools such as depositions and interrogatories; encourage earlier court participation in case management; and set a high bar for the imposition of sanctions for spoliation. While some participants expressed agreement with the proposals, participants from the plaintiffs’ bar, including members of the American Association for Justice and the National Employment Lawyers’ Association, expressed concern that the amendments would disfavor their clients by impeding their ability to access courts for a merits-based determination by a jury. In addition, plaintiffs’ lawyers sought to offer language changes that would promote efficient and speedy resolution of federal cases, but not at the expense of justice.

IAALS will be summarizing the participants’ views in a report due out in mid-December, and will file the report with the Civil Rules Committee, which solicited public comment on the proposed amendments until February 15, 2014.