A Wake-Up Call To Corporate Counsel: You Can Advance The Efficient Resolution Of Disputes Without Compromising Fairness

Thursday, January 1, 2009 - 01:00

The Editor interviews Jeffrey W. Jackson, Senior Vice President and General Counsel, State Farm Mutual Automobile Insurance Company, Member, Executive Committee, and Secretary and Treasurer, LawyersFor Civil Justice (LCJ).

Editor: Tell us about LCJ.

Jackson: LCJ is a national coalition of over 30 corporations, three national defense counsel organizations and 65 associate member law firms supporting civil justice reform by advancing LCJ initiatives across the country on the federal level, on the state level, in legislatures, and in rule-making bodies.

Editor: I understand that LCJ is urging both corporate counsel and defense practitioners to comment and to sign up and testify on proposed amendments to summary judgment Rule 56 and expert discovery Rule 26 at hearings before the Federal Judicial Conference Advisory Committee on Civil Rules.

Jackson: As the cost and burden of litigation continues to grow, so too does the need for rules that advance the efficient resolution of disputes without compromising fairness. LCJ supportsadoption of both sets of proposed amendments, but suggests revisions that we believe will substantially improve them by encouraging adherence to the requirements of Rule 56 and facilitating a principled resolution of the issues prior to trial where appropriate. And, we believe that the proposed amendments to Rule 26 will, on balance, protect attorney work product while saving substantial time and effort.

Several LCJ members offered outstanding testimony at the Washington, DC hearing in support of strengthening the Federal rules on summary judgment and expert discovery.To continue the positive momentum, LCJ strongly encourages additional corporate counsel and defense practitioners to submit comments and sign up to testify at the two remaining Judicial Conference hearings which are scheduled in:

• San Antonio, Texas, on January 14, 2009

• San Francisco, California, on February 2, 2009

Requests to testify should be submitted to Rules_Comments@ao.uscourts. gov.

Editor: What are the key arguments in support of the amendments of Rule 56 (Summary Judgment)?

Jackson: They are as follows:

1. The amendments seek to improve procedure without changing the standard for entry of summary judgment, the principal change being adoption of a point counterpoint procedure currently common to many local rules.

2. LCJ strongly supports the objectives of the amendments to establish a clear, consistent national standard governing summary judgment that will clarify existing inconsistencies in the current national rule.

3. However, LCJ's position is that the amendments as drafted would change Rule 56 as we know it by: (a) replacing "shall grant" with "should grant" thereby reversing the mandate of Rule 56 and permitting courts to deny summary judgment even when the standard is satisfied and the movant is entitled to judgment; and (b) failing to amend the "bad faith" provision of current Rule 56(g) [proposed 56(h)] to adopt an objective cost allocation provision that would serve to discipline adherence to the Rule and to deter frivolous motions and responses. The Invitation for Comment raises several questions on this issue (Report of the Advisory Committee on Civil Rules May 2008 at 23-25).

4. Cost Allocation vs. Bad Faith. LCJ's position is that rather than amending current Rule 56(g) [proposed Rule 56(h)] to render it discretionary because it is seldom utilized, we urge the Committee to make 56(h) a more useful tool for managing summary judgment practice by changing the Rule to provide for reasonable cost allocation.

Editor: What are the key arguments in support of the amendments of Rule 26 (Expert Discovery)?

Jackson: They are as follows:

1. Those parts of Rule 26 governing discovery and disclosure of expert trial testimony would be amended as follows:

(a)Proposed Rule 26 (a)(2)(C) addresses the problems caused by many courts requiring reports from "employee experts" even though the explicit terms of Rule 26(a)(2)(B) do not require them unless the employees' duties "regularly involve giving expert testimony." Rule 26(a)(2)(C) creates a new obligation to disclose a summary of the facts and opinions of a trial-witness expert who is not required to provide a disclosure report under Rule 26(a)(2)(B), as a substitute for the report requirement.

(b) The core changes extend work-product protection to drafts of Rule 26(a)(2)(B) expert reports and 26(a)(2)(C) party disclosures and also to attorney-expert communications. But three exceptions allow discovery as a matter of course of the parts of attorney-expert communications relating to: (i) compensation, (ii) identifying facts or data the attorney provided to the expert and that the expert considered in forming the opinions to be expressed, and (iii) identifying assumptions that the attorney provided to the expert and that the expert relied upon in forming the opinions to be expressed.

2. LCJ strongly supports the substitution of an attorney summary disclosure for preparation of a report by a trial-witness expert who is not required to provide a report under Rule 26(a)(2)(B).

3. On balance LCJ supports the core amendments that would protect work product and attorney-expert communications with three exceptions. Some are opposed to protecting such communications and drafts, but an overwhelmingly large majority of lawyers support the changes because the small benefits of open discovery do not justify the cost and burden of protecting such communications.

4. The Invitation for Comment (Report of the Advisory Committee on Civil Rules May 2008 at 5-7) is a careful explanation of the issues that should be addressed in Comments to the Committee.

Editor: What must our readers do to submit comments and sign up for hearings?

Jackson: They should do the following:

1. The Request for Comment and all information from the Rules Committee regarding the proposed amendments to Rule 56, Summary Judgment and Rule 26, Expert Discovery, can be found at http://www.uscourts.gov/rules/newrules1.htm. That link takes you to the Rules Published for Comment page, where you can find Memorandum to the Bench, Bar, and Public on Proposed Amendments to the Federal Rules August 2008 (PDF) and Report of the Advisory Committee on Civil Rule May 2008 (PDF).

2. To submit comments and sign up for hearings click on to the uscourts link above and scroll to the "Submit comments electronically via e-mail" link. Requests to testify can be made via e-mail on the message screen as simply as follows:"This will request permission to testify on the proposed amendments to Civil Rules 26 and 56 at the hearing on..." Written comments may also be submitted via the same or a separate e-mail either in the body of the email or more formally by attaching a PDF.

3. The Rules Committee would prefer that parties requesting an opportunity to testify at one of the hearings do so 30 DAYS IN ADVANCE of the hearing. Written comments are preferred ASAP, but the absolute deadline is February 17, 2009 and those who are testifying should submit at least a summary of their remarks the week before the hearing.

For more information, please contact LCJ Executive Director Barry Bauman at 202-429-0045 or at bbauman@lfcj.com.

Links to the items underlined above can be found on the version of this interviewon the home page of our website (www.metrocorpcounsel.com).