Defense Bar Calls For Changes To The Federal Rules Of Civil Procedure Meaningful Amendments Needed To Improve The Administration Of Justice In The Federal Courts

Monday, August 2, 2010 - 01:00

Lawyers for Civil Justice (LCJ), DRI - The Voice of the Defense Bar, the Federation of Defense & Corporate Counsel (FDCC), and the International Association of Defense Counsel (IADC), recently announced strong support for a fundamental review of the Federal Rules of Civil Procedure (FRCP) now underway by the Federal Judicial Conference Rules Committee.

A Defense Bar white paper, Reshaping the Rules of Civil Procedure for the 21st Century , was submitted to the recent 2010 Conference on Civil Litigation at Duke Law School. The white paper, subtitled "The Need for Clear, Concise, and Meaningful Amendments to Key Rules of Civil Procedure," represents the consensus of the defense bar on major problems facing the federal courts now and in the future. It encourages the Rules Committee, sponsor of the conference, to move forward with meaningful amendments to the Rules to help solve those problems.

The submission of the white paper represents one in a series of significant steps by the organized defense bar, the business community and nationally recognized academics to encourage judicial policymakers to support major rule revisions. From a historical perspective, the initiative comes at a unique time - a time we have characterized as a "once in a lifetime opportunity" - because current circumstances compel us to rethink the underpinnings of our litigation landscape.

First, the initiativebuilds upon the findings of the joint project of the American College of Trial Lawyers (ACTL) and the Institute for the Advancement of the American Legal System at the University of Denver (IAALS) that, "although the civil justice system is not broken, it is in serious need of repair."

Second, the FRCP initiative andsubmission of the White Paperfollows on the heels of two significant U.S. Supreme Court decisions, Twombly and Iqbal , which recognized that under the present system of notice pleading and broad discovery, the federal courts were failing in key ways to ensure the just, speedy and cost-effective determination of every action.

And finally, the initiative coincides with new litigation cost data that shows just how dramatically the U.S. litigation system impedes America's economic growth and global competitiveness.

Many nationally recognized academics, judges and policymakers uniformly agree that constructively challenging the status quo and forcefully supporting sweeping revisions to the civil rules is warranted not only by the pressing necessity to revisit and demand rules of greater fairness to all litigants but to more fully consider the impact of the judicial system on the fundamental goals of society and how it impacts our current economic climate.All of these circumstances have "conspired" to propel the initiative forward and have generated wide-spread support within the defense bar.

The white paper was developed with broad input from almost 100 corporate and defense counsel and was presented to the Duke Conference on Civil Litigation by Bruce Parker of Venable LLP.Additional formal comments by the defense bar were submitted to the rule makers which crystallized the "economic" arguments and expanded on the role that the litigation system plays as a critical link in American society.

The current circumstances justify more than piecemeal reform.According to LCJ President John H. Martin, "The white paper calls for a comprehensive reevaluation of the existing rules governing litigation in the twenty-first century." He explained, "More than just tinkering at the edges of the rules is needed, and fundamental reforms are in order to improve the administration of justice in the federal courts."

Diverse stakeholders in the federal civil litigation process want systemic reform of the Federal Rules of Civil Procedure. Necessary reforms cannot be left to sporadic and potentially inconsistent ad hoc holdings by various courts deciding cases before them. Courts acting individually face practical and institutional limitations that prevent them from making the needed systemic changes to interrelated rules. Broad-based policy and rule reform are necessary.

LCJ, DRI, FDCC and IADC jointly call for a comprehensive reevaluation of the existing rules governing litigation in the twenty-first century, including attempting to redefine and balance the interrelationship of pleading and discovery, reevaluating the premises and focus of discovery, further refining the treatment of e-discovery, developing clear preservation standards, and deterring runaway litigation costs by reasonable cost allocation rules. It is not just the individual litigants in a particular case who are impacted by today's litigation problems. Indeed, these problems affect the courts applying the rules, the attorneys interpreting those rules and counseling their clients, and the members of society who need a system of civil justice that provides meaningful, accessible and affordable dispute resolution.

Accordingly, the defense bar supports systemic reform in four important areas:

Pleadings - The sensible and realistic "plausibility" pleading standard in Twombly and Iqbal should be implemented in the Rules to clarify that more than mere "notice pleading" is required.

Limited Discovery - The Rules should limit the scope of discovery to non-privileged, proportional information that would support proof of a claim or defense.

Preservation - The Rules should be amended to permit spoliation sanctions only where willful conduct for the purpose of depriving another party of the use of the information results in actual prejudice to the other party.

Cost Allocation - Runaway discovery costs require specific cost allocation provisions that require each party to pay the costs of the discovery it seeks.

LCJ and its members hope to shape this important debate by providing the corporate and defense perspective to the policymakers on an ongoing basis. The white paper and subsequent comments can be downloaded at

If you have questions about this statement, email the presidents of the respective organizations at (LCJ), (DRI), (FDCC), or (IADC).