Why is the Chief Justice of the Supreme Court of the United States proclaiming that the 2015 Amendments to the Federal Rules are a “Big Deal?” He is clearly telling us that the amendments should usher in significant improvements in the civil litigation process. The 2015 Amendments by themselves probably would fall well short of Chief Justice Robert’s assessment, but when the amendments are read together with his 2015 Year-End Report on the Federal Judiciary, the combination certainly looks like a “Big Deal.” 2015 Year-End Report on the Federal Judiciary Using his 2015 Report to convey his message, Chief Justice Roberts writes, “The amendments may not look like a big deal at first glance, but they are.” Since the Chief Justice sits at the top of the legal pyramid, his commentary and admonitions should steer expectations (with other federal judges, at the very least). The 16-page Report, which begins with discussion of the 1838 Codes for Principals and Seconds in dueling, is both easy and necessary reading for every federal litigator even if it delivers a somewhat uncomfortable message to the bench and bar. The Chief Justice reminds us that the 2015 Amendments are the “product of five years of intense study, debate, and drafting to address the most serious impediments to just, speedy, and efficient resolution of civil disputes.” This is more than a congratulatory pat on the back for the rule makers. The Committee members and many participants appreciated that the federal courts were in need of an overhaul, and they were determined to deliver meaningful improvements. The process spanned five years because the task was both huge and critically important, and that process required careful steps and broad participation. Amendments to Rule 1 and Rule 26(b)(1) While the 2015 Amendments are a package of rule changes, this Blog posting considers just the 8-word expansion of Rule 1 and the revised and relocated proportionality language now in Rule 26(b)(1). This limited coverage, however, confirms the Chief Justice’s message that the 2015 Amendments can be, in fact, the “Big Deal.” But it’s not tweaks to the rules alone that will initiate meaningful improvements in the litigation process. The Chief Justice saying the rules mandate cooperation among the parties and the court, and his instruction to the federal judiciary to become actively involved in setting the scope of discovery, propels the implementation of the intended improvements. At the beginning of the Report, the Chief Justice discusses Rule 1:
Rule 1 directs that the Federal Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” The underscored words make express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation—an obligation given effect in the amendments that follow. [Emphasis in original Report]So that we do not glide by the newly added eight words without absorbing their meaning, the Chief Justice instructs “[t]he underscored words make express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation—an obligation given effect in the amendments that follows.” If cooperation was a distant objective before, it’s now embedded in the Federal Rules. Our attention next turns to the proportionality amendments in Rule 26(b)(1). Chief Justice Roberts there explains, “Rule 26(b)(1) crystallizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” He quotes the amended rule:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.Appreciate how the amended rule differs from before. The scope of discovery had been “any matter relevant to the subject matter involved in the action.” The new scope boundaries are substantially reduced to matters “relevant to any party’s claim or defense and proportional to the needs of the case . . .” Also, the proportionality language is relocated from the proverbial basement (previously Rule 26(b(2)(c)(iii)) to the front foyer (Rule 26(b)(1)) so that proportionality can no longer be treated as an afterthought, or perhaps given no thought at all. The “Big Deal” Justice Roberts goes beyond reciting the reworded and somewhat expanded rules. To bring genuine improvement to the civil litigation process, he explains, “The key here is careful and realistic assessment of actual need.” If the Report stopped here, then the 2015 Amendments might bring about just a shuffling of papers with new but meaningless reports. Opposing counsel probably can only rarely reach agreement on “actual need” no matter how sternly a court demands that they meet and confer, even if they must meet multiple times. The Chief Justice continues, “[t]hat assessment may, as a practical matter, require the active involvement of a neutral arbiter—the federal judge—to guide decisions respecting the scope of discovery.” This is it. Rule 1 dictates that “the court and the parties” be involved, and, according to the Chief Justice, it is the “obligation of judges and lawyers to work cooperatively . . .” And the Chief Justice calls for the “active involvement” of federal judges in setting the “scope of discovery.” While it is a big deal for the Chief Justice to admonish attorneys that they must “work cooperatively” with their opposition, and it is an even bigger deal for the Chief Justice to instruct the federal judiciary that it’s time for them to come down from the bench, roll up their sleeves, and become actively involved in core discovery issues at the early stages of a matter. In an interesting development, the Washington Post concurred with the Chief Justice. It’s not often that legal rule amendments are fodder for newspaper editorials; when the news media weighs in on legal procedure, it’s usually because the developments are a Big Deal (or some horribly botched process). While the Post editorial page may not be persuasive legal precedent, there is common sense relayed in the editorial: Some in the legal world warn that these changes are unnecessary and potentially counterproductive, limiting access to valuable information. But there is no good argument against insisting that lawyers’ requests be proportionate. Judges will have to make sure the spirit of these reforms is respected. Chief Justice Roberts might disagree with one point in the editorial. His message to the bench and bar is that the changes are more than the mere “spirit of these reforms”. Instead, the duties and obligations are, in fact, now embedded in the Federal Rules. In sum, those who downplayed the 2015 Amendments to the Federal Rules as technical adjustments that would have only minimal impact on day-to-day practice should think again. Chief Justice Roberts, drawing on the amendments and employing his position as the Chief Justice of the Supreme Court of the United States, announced that there is an “obligation of judges and lawyers to work cooperatively” and that federal judges should be actively involved in setting the scope of discovery. Moreover, these duties and obligations are now embedded in the Federal Rules. This is, truly, a Big Deal.