A Civil Rules Roundtable: The Burden Shifts to the Judges

Tuesday, December 1, 2015 - 14:48

As the revised Federal Rules of Civil Procedure were about to kick in on December 1, Metropolitan Corporate Counsel caught up with John K. Rabiej, director of the Center for Judicial Studies at Duke Law School. It’s not a stretch to say that if the revised rules were a start-up company, Duke was the incubator.

Rabiej was a little breathless. He had just returned from the first leg of the “Rules Amendment Roadshow,” a joint production of the ABA Section of Litigation and Duke. This 13-city tour, led by the apparently indefatigable U.S. District Judge Lee H. Rosenthal of the Southern District of Texas and Prof. Steven Gensler of the University of Oklahoma College of Law launched to packed federal courthouses in New York City, Philadelphia and Newark on November 10-12. 

Rabiej, a longtime rules and e-discovery guru who served as executive director of The Sedona Conference and, before that, spent 20 years with the Judicial Conference Committee on the Rules of Practice and Procedure, was there to see how Duke’s handiwork made the leap from page to stage – its “Guidelines and Practices” developed to help judges and parties put the revised rules into action (see https://law.duke.edu/judicialstudies/conferences/proportionality/materials/). No out-of-town tryouts for this show. They launched at the judicial equivalent of Broadway, the Thurgood Marshall U.S. Courthouse in downtown New York City, where they picked up a thing or two about stagecraft. “We learned right away not to set the panelists above the audience,” Rabiej says, noting that putting them on same level stimulated more of the give-and-take they were seeking.

The show was not without controversy. It launched against a backdrop of criticism leveled in an opinion piece on Law360 by Suja A. Thomas, a law professor at the University of Illinois College of Law (coincidentally Rabiej’s own alma mater). Thomas blasted Duke, accusing it of being in the hip pocket of big business. “With corporate influence,” she writes, “Duke has published guidelines that permit corporations not to disclose information that is required under the federal rule, and federal judges are being educated on those guidelines.” 

Rabiej takes the criticism seriously. He is quick to point out, however, that the Duke Center is financially independent, the roadshow is funded by modest registration fees, and that all the Center’s work, including the Guidelines and Practices, grew out of the input of plaintiff and defense lawyers, judges and academics, none of whom was compensated. Not surprisingly, the debate continued to play out during the roadshow.  

“Some of the panelists were very concerned that these rules would give no importance to cases that did not involve much money – for example, cases involving constitutional rights or civil employment discrimination,” he says. “They were quite passionate in their views and their criticism of the rules.” Under the amendments, however, a judge must consider the “importance of the issues at stake” in the proportionality analysis.

Contrary to Prof. Thomas’ suggestion, the Guidelines are not official rules, and they make no claim to the contrary, he says. Rather, they are “suggestions” designed to stimulate discussion about implementation and interpretation. “There’s nothing that requires a judge to do anything,” he says. 

In the contributions that follow, MCC provides a mosaic of viewpoints on the revised rules. While there is much discussion of proportionality, which is very much top of mind for most observers, there’s far more to the changes. For his part, Rabiej is tracking the procedures designed to accelerate matters, including the key Rule 26(f) conference. He also has his eye on Rule 34, which deals with specificity in production, and, of course, the changes to Rule 37 on sanctions. As for e-discovery, he doesn’t see a big impact on preservation – at least not right away.

“I think the attorneys will be conservative, preserving a lot unless emerging case law limits that, but they’ll be able to sleep better,” he says. “Currently, the producing party is subject to the most severe sanctions if an employee just negligently deletes something. Now, as long as there are reasonable efforts, you won’t be subject to the most severe sanctions.” 

At the first roadshows, he says, a certain pragmatic ethos began to emerge, at least among the judges. “They were the ones to put their finger on it,” he says. “We need to come up with a way to get the information that both parties need – not necessarily anything that’s relevant, but what they actually need – and get it to them promptly. The rules are intended to address that, and the Guidelines put a little more flesh on the bones. Obviously, there’s mistrust. ‘I really didn’t get what I need because you’re hiding the ball on me.’ That’s where the judge is needed – to make sure those things don’t happen.”

Our discussion ended at the beginning: Rule 1. That’s the touchstone for the civil rules, with its mission of “just, speedy, and inexpensive” disposition of federal matters. The revised rules make it explicit that it’s very much on the parties to cooperate to achieve that goal. It’s a tall order.

“I’ve heard many people refer to it as aspirational because there is no sanction involved. I think the judges can – discipline is not the right word – encourage parties to cooperate now that there’s a rule behind them. There’s a lot riding on the judges.”