Federal Civil Practice Bulletin

Coleman on the Abrogation of Rule 84 and the Appendix of Forms

2014-01-13T12:37:00.000-05:00

Brooke Coleman (Seattle) has just posted an essay entitled Abrogation Magic: The Rules Enabling Act, Civil Rule 84, and the Forms on SSRN. Here is the abstract:

The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof—after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act of 1934. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond. Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments. This Essay argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear.

This piece may be downloaded by visiting SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2375042.

Cincinnati College of Law Celebrates the 75th Anniversary of the Federal Rules of Civil Procedure

2013-08-26T10:03:00.004-04:00

Date: August 27, 2013

Time: 3:00 p.m. - 5:00 p.m.

Location: Patricia Corbett Theater (CCM)

CLE:     2 hrs CLE credits approved for OH and KY

RSVP: Contact Mindy Lawson at mindy.lawson@uc.edu

The College of Law’s fall event schedule kicks off with the “75th Anniversary of the Federal Rules of Civil Procedure,” a panel discussion to be held on August 27, 2013 at 3:00 p.m. A star-studded panel of judges, academics, politicians, lawyers, and business people will come together to discuss the impact of the Federal Rules of Civil Procedure and the importance of this anniversary. The panel will be taking a wide angle view of what the rules were designed to achieve, how they have been applied, what is happening now, and what the future of the Federal Rules might be. Arthur R. Miller, University Professor at New York University, the nation’s leading scholar in the field of American civil procedure and coauthor with the late Charles Wright of Federal Practice and Procedure, will moderate this event.

Confirmed Panelists:

Thomas Y. Allman, Senior V.P., General Counsel and Chief Compliance Officer, BASF Corporation (retired)
Hon. Michael R. Barrett, U.S. District Court, Southern District of Ohio
Hon. Susan J. Dlott, Chief Judge, U.S. District Court, Southern District of Ohio
Al Gerhardstein, Partner, Gerhardstein and Branch Co., LPA
Hon. Nancy Gertner (ret.), Professor of Practice, Harvard Law School
Hon. Maureen O'Connor, Chief Justice, Supreme Court of Ohio
Hon. Solomon Oliver, Jr., Chief Judge, U.S. District Court, Northern District of Ohio
Andrew J. Pincus, Partner, Mayer Brown LLP, Washington, D.C.
Victor E. Schwartz, Partner, Shook Hardy & Bacon, LLP, Washington, D.C.
Senator Bill Seitz, 8th District, Ohio Senate
David A. Singleton, Executive Director, Ohio Justice and Policy Center
Michael E. Solimine, Donald P. Klekamp Professor of Law, University of Cincinnati College of Law
Hon. Jeffrey S. Sutton, U.S. Court of Appeals, Sixth Circuit
Carolyn A. Taggart, Partner, Porter Wright Morris & Arthur LLP
Suja A. Thomas, Professor, University of Illinois College of Law
John Vail, Vice President and Senior Litigation Counsel, Center for Constitutional Litigation, Washington, DC
A reception will follow.

Sponsor: College of Law

Co-Sponsors: John W. Peck Cincinnati-Northern Kentucky Chapter of the Federal Bar Association
Federal Bar Association, Dayton Chapter

SCOTUS Decides Standard Fire Insurance Co. v. Knowles

2013-03-19T12:06:00.003-04:00

From BNA's Supreme Court Today:

Standard Fire Insurance Co. v. Knowles, No. 11-1450: A would-be class plaintiff's stipulation that he and the class he seeks to represent will not seek damages greater than $5 million total, which is the jurisdictional threshold for federal district courts to have original jurisdiction over class actions under the Class Action Fairness Act of 2005, does not remove the case from CAFA's scope. The plaintiff made the stipulation in an affidavit filed with the complaint, before class certification. The stipulation does not remove the case from CAFA coverage because it is not binding on class members the plaintiff seeks to represent.

Kaplow on Multistage Litigation

2012-12-04T10:22:00.003-05:00

Professor Louis Kaplow (Harvard) has posted an article entitled Multistage Litigation on SSRN. Here is the abstract:

Legal proceedings often involve multiple stages: U.S. civil litigation allows motions to dismiss and for summary judgment before reaching a trial; government agencies as well as prosecutors employ investigative and screening processes before initiating formal adjudication; and many Continental tribunals move forward sequentially. Decisionmaking criteria have proved controversial, as indicated by reactions to the Supreme Court’s recent decisions in Twombly and Lqbal and its 1986 summary judgment trilogy, which together implicate the four Supreme Court cases most cited by federal courts. Neither jurists nor commentators have articulated coherent, noncircular legal standards, and no attempt has been made to examine systematically how decisions at different procedural stages should ideally be made in light of the legal system’s objectives. This Article presents a foundational analysis of the subject. The investigation illuminates central elements of legal system design, recasts existing debates about decision standards, identifies pathways for reform, and provides new perspectives on the nature of facts and evidence and on the relationship between substantive and procedural law.

The article may be downloaded by visiting http://ssrn.com/abstract=2154683.

Issacharoff and Miller Post Motion to Dismiss Article on SSRN

2012-11-27T09:41:00.000-05:00

Professors Samuel Issacharoff and Geoffrey Miller (both of NYU) have just posted an article entitled An Information-Forcing Approach to the Motion to Dismiss on SSRN. Here is the abstract:

This article proposes a new approach to the 12(b)(6) motion to dismiss. The idea works as follows. Defendant moves to dismiss exactly as under current practice. Plaintiff either responds to the motion, thus submitting the matter for decision, or files an affidavit proposing a plan of targeted discovery. After receiving defendant’s response, the court approves, rejects, or revises the proposed discovery plan. If the judge allows discovery, defendant either withdraws the motion or produces the information. If defendant withdraws the motion, the litigation proceeds in the usual way. If defendant continues the motion the parties engage in targeted discovery. The court then reviews the motion taking account of information which either party brings to the court’s attention, including information produced in discovery. If the court grants the motion, the case is dismissed and plaintiff pays defendant’s reasonable fees and costs associated with the motion and associated discovery. If the court denies the motion, the case continues and defendant pays plaintiff’s reasonable fees and costs. Our proposal would incentivize both parties to reveal information pertinent to the court’s decision. It promises to improve the operation of the motion to dismiss regardless of the substantive standard used to evaluate the sufficiency of the claims for relief.

You may download the full article by clicking here.

Prof. Coleman Posts Right-to-Counsel Article on SSRN

2012-09-12T15:39:00.003-04:00

Professor Brooke Coleman (Seattle) has recently posted her forthcoming piece on the right to counsel, Prison is Prison, which will be published in the Notre Dame Law Review. Here is the abstract:

Two indigent men stand before two separate judges. Both will be sent to prison if they lose their cases. One receives appointed counsel, but the other does not. This discrepancy seems terribly unjust, yet the Supreme Court has no problem with it. It recently affirmed in Turner v. Rogers, that where an indigent individual is subject to criminal charges that can result in incarceration, he has a right to appointed counsel, but where an indigent individual is subject to civil proceedings where incarceration is a consequence, he does not. In other words, criminal and civil proceedings have different rules, and the right to appointed counsel is no exception. This Article argues that because the consequence of these proceedings is exactly the same, the right to appointed counsel should be the same. Prison is prison. This consequence, and not just doctrinal distinctions, should guide the Court’s analysis in deciding whether an indigent individual receives appointed counsel. By systematically examining the Court’s narratives in both criminal and civil right-to-counsel cases, this Article seeks to determine why the Court continues to treat the same situation so differently. The Court states that it is driven solely by doctrine, but it uses radically different language to discuss the individuals, attorneys, and nature of the proceedings in the criminal versus civil setting. This Article argues that the Court’s different goals in the criminal and civil context better explain the Court’s approach than doctrinal distinctions alone. With criminal cases, its goal is legitimacy, while with civil cases, its primary goal is efficiency. This Article questions the Court’s “doctrinal-oriented” approach in the civil context, and argues that what the Court is really doing is allowing its treatment of cases in the broader civil justice system to affect its jurisprudence in this context. It does this even when the consequence of a typical civil case is so different. After all, the result in a case like Turner is prison, not monetary damages or injunctive relief. Instead of taking this doctrinal-oriented approach, this Article argues that the Court’s analysis should be “consequence-driven.” Where prison is the consequence, the Court’s underlying analysis of right to counsel should be the same whether the proceeding is criminal or civil. Using the Court’s decision in Turner, the Article shows how a consequence-driven approach could have changed the result in that case.

The article is available for download at http://ssrn.com/abstract=2143333.

Top 10 Best Practices in Predictive Coding

2012-08-22T10:59:00.000-04:00

Equivio, an e-discovery vendor, has produced a white paper discussing the best practices in predictive coding. Registration is required to view the paper. Here is a description:

Predictive coding is new to e-discovery. Predictive coding, sometimes termed computer-assisted review or technology-assisted review, is software that can be trained by a human being to distinguish between relevant and non-relevant documents. Over the past three years, the predictive coding market has transitioned from a preliminary embryonic state, a test bed for experimentation by technology geeks and early adopters, to the point today where the technology has been approved for use by courts around the US and internationally, and has become the single most talked about topic in e-discovery worldwide.

As is well known, the classification technologies that underlie predictive coding applications in the e-discovery arena are widely used in a very broad range of industrial and scientific settings, and have done so since beginning in the 1960’s. Some of the best practices that have developed in these settings are analogous to the e-discovery setting. However, e-discovery is a unique arena, especially in terms of the stringent defensibility requirements that apply. As such, it has been necessary to develop and define best practices that will address the unique needs of predictive coding applications in the e-discovery environment. The objective of this white paper is to outline the best practices that are emerging in the application of predictive coding technology to the e-discovery arena.

Visit http://www.equivio.com/resource_download.php?ID=75&utm_source=Equivio+update%3A+Epiq+adopts+Zoom%2C+Clustering+in+Zoom%2C+Case+Order+on+Relevance...&utm_campaign=Equivio+update+August+22&utm_medium=email.

Prof. Hoffman Posts Article on Rulemaking in the Age of Twombly and Iqbal

2012-08-15T11:44:00.002-04:00

Professor Lonny Hoffman (Houston) has just posted an Article entitled Rulemaking in the Age of Twombly and Iqbal. Here is the abstract:

In this article I am essentially trying to answer one critical question: Faced with the controversy triggered by the Supreme Court’s decisions in Bell Atlantic Co. v. Twombly (2007) and Ashcroft v. Iqbal (2009), particularly over access to the courts, why have judicial rulemakers not proposed rule reforms to address the concerns raised? This question is particularly puzzling when one realizes that over the last seventy-five years the rules committees have consistently rejected proposals to stiffen pleading requirements along lines similar to what the Court decreed in Twombly and Iqbal. It is as if Congress had repeatedly voted against amending a statute that had been on the books for years only to have the Court through judicial interpretation effectively rewrite the law as though it had been amended. While we reasonably might predict that at least some in Congress would call for a legislative response if this happened, five years after Twombly no proposals for rule reform have been forthcoming and there is no momentum on the rules committees in favor of reform. Why? In this paper I argue that uncovering what has kept rulemakers from acting in the past permits us to interrogate whether those reasons can justify the same course in the future. Ultimately, I conclude that the justifications of the past are no longer sufficient and that the case for immediate rule reform is strong. Beyond its immediate relevance to the unresolved pleading problem, the added perspective gained by examination of the rulemakers’ deliberations can also deepen our understanding of the rulemaking process generally, providing new insights about how the process of making new rules and evaluating existing ones may be improved.

The piece can be downloaded by visiting http://ssrn.com/abstract=2123325.

2013 NEW VOICES IN CIVIL JUSTICE SCHOLARSHIP WORKSHOP

2012-08-14T19:38:00.002-04:00

2013 NEW VOICES IN CIVIL JUSTICE SCHOLARSHIP WORKSHOP

CALL FOR PAPERS

Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its annual New Voices in Civil Justice Scholarship Workshop, to be held May 6-7, 2013 at Vanderbilt Law School.

This year, four junior scholars will be selected via a blind review process to present at the New Voices Workshop. The format maximizes collegial interaction and feedback: in lieu of author “presentations,” all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows.

Submitted papers should address an aspect of civil justice, broadly defined. Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decision-making, alternative dispute resolution, remedies, and conflict of laws. In keeping with the intellectual breadth of the Branstetter Program faculty, the Workshop welcomes all scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches.

Submissions must be received at Branstetter.Program@vanderbilt.edu no later thanJanuary 1, 2013. Selected participants will have reasonable travel and accommodations covered. Other requirements and more details about the workshop can be found at www.law.vanderbilt.edu/newvoices.

Langbein on the Disappearance of the Civil Trial

2012-08-13T13:30:00.002-04:00

New on SSRN: John Langbein, The Disappearance of Civil Trial in the United States - http://ssrn.com/abstract=2123386. Abstract:

Since the 1930s, the proportion of civil cases concluded at trial has declined from about 20% to below 2% in the federal courts and below 1% in state courts. This Article looks to the history of the civil trial to explain why the trial endured so long and then vanished so rapidly.

For the litigants, a civil procedure system serves two connected functions: investigating the facts and adjudicating the dispute. The better the system investigates and clarifies the facts, the more it promotes settlement and reduces the need to adjudicate. The Anglo-American common law for most of its history paid scant attention to the investigative function. This Article points to the role of the jury system in shaping the procedure and restricting the investigative function. Pleading was the only significant component of pretrial procedure, and the dominant function of pleading was to control the jury by narrowing to a single issue the question that the jury would be asked to decide. This primitive pretrial process left trial as the only occasion at which it was sometimes possible to investigate issues of fact. Over time, the jury-free equity courts developed techniques to enable litigants to obtain testimonial and documentary evidence in advance of adjudication. The fusion of law and equity in the Federal Rules of Civil Procedure of 1938 brought those techniques into the merged procedure, and expanded them notably. The signature reform of the Federal Rules was to shift pretrial procedure from pleading to discovery. A new system of civil procedure emerged, centered on the discovery of documents and the sworn depositions of parties and witnesses. Related innovations, the pretrial conference and summary judgment, reinforced the substitution of discovery for trial. This new procedure system has overcome the information deficit that so afflicted common law procedure, enabling almost all cases to be settled or dismissed without trial. Pretrial procedure has become nontrial procedure by making trial obsolete.

Blogging Hiaitus

2012-08-02T12:49:00.002-04:00

Multiple time constraints have made it impossible to keep up with a regular posting schedule at this blog. Thus, I am making explicit the fact that I will not be posting to this blog with any regularity for the foreseeable future. If something critical arises that is of interest to civil procedure, I may post about it. Otherwise, I direct your attention to the very ably managed and frequently updated Civil Procedure & Federal Courts Blog available at http://lawprofessors.typepad.com/civpro/.

In the meantime, I will make an effort to post links to civil procedure related news at my Twitter feed, which is @PROFSPENCER.

Summary Judgment Symposium Papers Published

2012-05-19T19:10:00.002-04:00

The Loyola University Chicago Law Journal has just published papers from last fall's symposium on Summary Judgment. The articles are available at http://www.luc.edu/law/activities/publications/lljdocs/vol43_no3/llj_vol43_no3.html.

Announcing the Stanford Journal of Complex Litigation

2012-05-11T09:36:00.000-04:00

Here is the announcement:

Dear Authors:

We are proud to announce the founding of the Stanford Journal of Complex Litigation (SJCL). Beginning in the 2012-2013 academic year, SJCL will publish articles and essays that are timely and make a significant, original contribution to the field of complex litigation. We are currently seeking article and essay manuscripts on a range of topics including the rules of civil procedure, aggregate litigation, mass torts, jurisdictional disputes, complex litigation reform, actions by private attorneys general, and transnational litigation.

We review and accept articles year-round on a rolling basis. SJCL strongly prefers electronic submissions through the ExpressO submission system, which can be found online at http://www.law.bepress.com/expresso. You may also e-mail your manuscript to sjcl_submissions@lists.stanford.edu. We do not accept submissions in hard copy.
SJCL is also seeking faculty with expertise in areas such as civil procedure or complex litigation to serve as reviewers. If you are interested, please contact sjcl_editors@lists.stanford.edu.
A website with more information is forthcoming. For the time being please refer to our Stanford Law School site: http://www.law.stanford.edu/publications/journals/sjcl/.

Please contact us with any questions. We look forward to working with you.

Regards,

Nick Landsman-Roos & Matt Woleske
Editors-in-Chief, Stanford Journal of Complex Litigation
sjcl_editors@lists.stanford.edu

Fourth Circuit Rejects Sufficiency of Evidence Appeal Absent JMOL Renewal

2012-05-10T14:56:00.004-04:00

The Fourth Circuit has applied Unitherm to rejects a sufficiency of evidence appeal in absence of post-verdict renewal of JMOL motion. The case is Belk, Inc. v. Meyer Corp., No. 10-1664 (May 9, 2012). The opinion is available at http://pacer.ca4.uscourts.gov/opinion.pdf/101664.P.pdf.

E.D. Va. Imposes Spoliation Sanctions for Failure to Suspend Document Destruction Policy

2012-04-10T10:55:00.002-04:00

Per Toys "R" Us-Delaware, Inc. v. Tots in Mind, Inc., Slip Copy, 2012 WL 529595 (E.D. Va. Feb. 17, 2012):

TRU's Motion for Sanctions is based on Tots' alleged spoliation of evidence. During his deposition, Mr. LaMantia, Tots' Fed.R.Civ.P. 30(b)(6) witness, testified that Tots never altered its seven-year document destruction policy during either this, or the underlying Blanco, litigation. Following LaMantia's deposition, Tots filed affidavits correcting LaMantia's alleged misstatement. The affidavits indicate that a policy suspending document destruction has been in place as to relevant documents since the time of the Blanco litigation. Seemingly as an excuse for the inconsistencies, Mr. LaMantia's affidavit also states that he previously suffered a stroke, which has affected his memory.

“Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” See Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir.2001). The trial court's discretion for choosing the appropriate sanction for spoliation is broad. Id. In addition to sanctioning improper conduct, the district court may also impose sanctions for the purpose of leveling the evidentiary playing field. Id.

The Court is not persuaded that subsequent affidavits alone should be permitted to wholly contradict Mr. LaMantia's prior deposition testimony. See Russell v. Acme–Evans Co., 51 F.3d 64, 68 (7th Cir.1995) (“We have been highly critical of efforts to patch up a party's deposition with his own subsequent affidavit.”). Defendants failed to file a notice of errata subsequent to the damning deposition; Defendants failed to provide any internal documentation evidencing a suspension of its document destruction policy; and Defendants failed to provide any medical documentation evidencing (a) Mr. LaMantia's stroke or (b) that the alleged stroke impacted Mr. LaMantia's memory.

After careful consideration, the Court finds that sanctions for spoliation are appropriate. The Court will instruct the jury that no retention policy was put in place at Tots during the relevant time period. The Court will also instruct the jury that they may infer that but for Tots' spoliation, TRU would have been able to prove (1) that Tots did in fact receive the MPO; (2) that Tots retained printed copies of Shipment Set Details predating 2004 on file; and (3) that the paper purchase orders exchanged between Tots and TRU, prior to the electronic purchase orders, contained indemnification and warranty provisions printed on the reverse side of the orders. However, the Court will further instruct the jury that they are not required to so find, and in making their decision, they should consider all of the relevant evidence presented. In sum, the jury will be instructed that it may find that Tots' seven-year document destruction policy is the reason Tots was unable to produce the relevant documents.

E.D.Va. Rejects $50 Million Civil Penalty in FCA Case as Unconstitutionally Excessive

2012-04-09T10:41:00.000-04:00

Per U.S. ex rel. Bunk v. Birkart Globistics GmbH & Co., Slip Copy, 2012 WL 488256 (E.D.Va. Feb. 14 2012):

Presently pending before the Court is the Plaintiffs' post-trial motion for an award of civil penalties under the False Claims Act with respect to the DPM claim. For the reasons stated herein, the Court concludes that the mandatory civil penalty of at least $50,248,000 constitutes an unconstitutionally excessive fine in violation of the Eighth Amendment and, having made that determination, further concludes that it does not have the discretion to fashion some other civil penalty that would be within constitutional limits; and therefore no civil penalty will be imposed.

D. Colo. Notes Split Re Whether FRCP 9(b) Applies to Negligent Misrepresentation Claims

2012-03-13T05:19:00.001-04:00

Per Denver Health and Hosp. Authority v. Beverage Distributors Co., LLC --- F.Supp.2d ----, 2012 WL 400320 (D.Colo. Feb. 8, 2012):

Beverage contends that Rule 9(b), not Rule 8(a), applies to the negligent misrepresentation claim and that the claim cannot meet Rule 9(b). Rule 8(a) prescribes the pleading requirements for most claims. It requires a pleading to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”Fed.R.Civ.P. 8(a)(2). By contrast, Rule 9(b) requires that “a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b) (emphases added). This standard requires the complaint to “set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof.” Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir.1997)(citation omitted). The rule's purpose is “to afford defendant fair notice of plaintiff's claims and the factual ground upon which [they] are based ...” Id. (quoting Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982, 987 (10th Cir.1992)).

As the parties note, whether Rule 9(b) applies to negligent misrepresentation claims divides the circuit courts of appeals. Compare, e.g., Trooien v. Mansour, 608 F.3d 1020, 1028 (8th Cir .2010) (concluding that Rule 9(b)applies to the claim), and Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 583 (2d Cir.2005) (same);with Tricontinental Indus., Ltd. v. PricewaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.2007) (holding Rule 9(b) does not apply to claim), and Baltimore Cnty. v. Cigna Healthcare, 238 Fed. App'x 914, 921–22 (4th Cir.2007)(same). The issue similarly splits this district court. Compare Gunningham v. Std. Fire. Ins. Co., No. 07–cv–02538–REB–KLM, 2008 WL 4377451, at *2 (D.Colo. Sept.18, 2008) (applying Rule 9(b) to claim), with Conrad v. Educ. Res. Inst., 652 F.Supp.2d 1172, 1182–83 (D.Colo.2009) (concluding Rule 9(b) does not apply to claim). The Tenth Circuit has not decided the issue.

I conclude that Rule 9(b) does not apply to the negligent misrepresentation claim before me. The crux of the claim is that Beverage failed to use reasonable care or competence in obtaining and communicating information concerning Hood's eligibility. This rings not of fraud but negligence.

Prof. Wasserman on the Roberts Court and the Civil Procedure Revival

2012-02-29T12:29:00.002-05:00

Prof. Howard Wasserman (FIU) has just posted an Article entitled The Roberts Court and the Civil Procedure Revival on SSRN. Here is the Abstract:

In the six terms since John G. Roberts became Chief Justice in September 2005, the Supreme Court has decided numerous, significant, and potentially far-reaching cases on core civil procedure subjects, including pleading, summary judgment, personal jurisdiction, subject matter jurisdiction, class actions, and the Erie/Hanna Doctrine. This renewed interest in civil procedure and the Federal Rules is an important, but little-discussed, jurisprudential theme of the early years of the Roberts Court. This essay explores the Court’s emerging reengagement with civil procedure; it identifies several organizing themes in the recent cases and examines the existing ambivalence and hostility among the competing rulemaking institutions — the Supreme Court, Congress, the Rules committees, and the lower courts. The essay concludes that, with four Justices (including three of the Court’s newest members) sharing backgrounds and interest in civil procedure and with several procedure cases already decided or coming up in the October 2011 Term, we can expect this revived Court engagement in and focus on civil procedure to continue.

This Article is available for download at http://ssrn.com/abstract=1997233.

Is Judge Peck the First to Require a Predictive Coding Protocol for Automated Doc Review?

2012-02-16T10:51:00.001-05:00

From the ABA Journal:

An unusual decision by a federal magistrate judge to require a so-called predictive coding protocol for automated e-discovery in an employment discrimination class action is both good news and bad news for young attorneys.

The bad news: A number of their jobs could be at risk, if what may be a first-of-its-kind ruling by U.S. Magistrate Judge Andrew J. Peck in the Southern District of New York case becomes commonplace.

The good news: A number of lawyers could be freed from the drudgery of document review if the predictive coding protocol becomes a trend.

Designed to allow documents obtained through electronic discovery to be categorized without having a set of human eyes review each page, predictive coding is expected to be used in Da Silva Moore v. Publicis Groupe et al. to deal with some 3 million documents. A human review team will initially go through about 15,000 to 20,000 documents to determine an appropriate protocol for using Recommind's Axcelerate product, Law Technology News reports.

http://www.abajournal.com/mobile/article/is_federal_magistrate_the_first_to_require_computerized_predictive_coding_p/

Sant'Ambrogio and Zimmerman Post Article on Agency Class Actions on SSRN

2012-02-16T10:18:00.002-05:00

Michael D. Sant'Ambrogio (Michigan State) and Adam S. Zimmerman (St. John's) have posted The Agency Class Action on SSRN. Here is the Abstract:

The number of claims languishing on administrative dockets has become a new “crisis” — producing significant backlogs, arbitrary outcomes and new barriers to justice. Coal miners, disabled employees, and wounded soldiers sit on endless waitlists to appeal the same kinds of administrative decisions that frequently result in reversal. Refugees seeking asylum from the same country play a dangerous game of “roulette” before arbitrary decisionmakers. Defrauded consumers and investors miss out on fair compensation, as agencies settle the same claims with wrongdoers without victim participation or meaningful judicial oversight.

Reformers have called for new resources, more administrative law judges and improved attorney fee arrangements. But surprisingly, commentators have largely ignored tools long used by courts to resolve common claims raised by large groups of people: class action and complex litigation procedures. Almost no administrative law process allows groups to aggregate and resolve common claims for relief. As a result, in a wide variety adjudicatory proceedings, administrative agencies routinely (1) waste resources on repetitive cases, (2) reach inconsistent decisions for the same kinds of claims, and (3) deny individuals access to the affordable representation that aggregate procedures otherwise promise. Moreover, procedural and substantive hurdles — including exhaustion of administrative remedies and judicial deference to agency expertise — often prevent federal courts from providing class-wide relief to parties in agency adjudications.

We argue that agencies themselves should adopt aggregation procedures, like those under Rule 23 of the Federal Rules of Civil Procedure, to adjudicate common claims raised by large groups of people. After surveying the current tools by which agencies could promote more efficiency, consistency and legal access — including rulemaking, stare decisis, attorneys fees and federal court class actions — we find agency class action rules more effectively resolve common disputes by: (1) efficiently creating ways to pool information about recurring problems and enjoin systemic harms; (2) achieving greater equality in outcomes than individual adjudication; and (3) securing legal and expert assistance at a critical stage in the process. In this way, The Agency Class Action represents a new kind of decision-making for administrative agencies — a blend of adjudication and rulemaking for large groups of people who similarly depend upon the administrative state for relief.

The Article may be downloaded at http://ssrn.com/abstract=1997421.

SDNY Rejects KPMG's E-Discovery Appeal

2012-02-06T19:05:00.001-05:00

Above the Law is reporting on an SDNY decision in Pippin v. KPMG, ruling that KPMG has to preserve a larger set of computer hard drives than it had wanted to preserve: http://abovethelaw.com/2012/02/kpmg-recieves-an-e-discovery-smackdown/

Congress Passes Federal Courts Jurisdiction and Venue Clarification Act

2011-12-02T11:07:00.001-05:00

Congress has passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (JVCA) and sent it to the President for his signature. The bill cleans up matters in the area of subject matter jurisdiction and venue that needed to be cleared up relating to permanent resident aliens and diversity jurisdiction, the remand of unrelated state law claims removed to federal court, the determination of venue generally, and other matters. The text of the bill is available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr394enr/pdf/BILLS-112hr394enr.pdf.

Washburn Law Journal Seeking Contributions

2011-11-22T10:02:00.001-05:00

The Washburn Law Journal is constructing its Spring 2012 issue around the topic of resource allocation and the law. Specifically, the issue will focus on how attempts to conserve resources during the economic recession may impact the justice system. Several authors are already committed to the issue and will discuss topics including prosecutorial discretion as a vehicle to conserve state resources, questions surrounding the use of prison labor, and how new procedural rules may inhibit the ability of plaintiffs to access the court system. The Journal is seeking proposals from additional scholars that would like to contribute to the issue. Please contact the Articles Editor, Andrew Newcomer at andrew.newcomer@washburn.edu with any proposals or questions.

Glover Posts Article on Federal Civil Settlements on SSRN

2011-11-18T10:11:00.001-05:00

Maria Glover, a Climenko Fellow and Lecturer on Law at Harvard, has recently posted an article entitled The Federal Rules of Civil Settlement on SSRN. Here is the abstract:

The Federal Rules of Civil Procedure were based upon a straightforward model of adjudication: Resolve the merits of cases at trial, and use pre-trial procedures to facilitate accurate trial outcomes. However appealing in principle, this model has less relevance today. As is now well known, the endpoint around which the Federal Rules were structured — trial — virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article argues that we need a new vision of civil procedure for a world of settlement.

This Article begins by providing a systemic analysis of why the Federal Rules are inadequate to prevent settlement outcomes from being distorted relative to the underlying merits of a given dispute, as defined by reference to substantive law, and further explains how the Rules can actually amplify these distortions. Indeed, notwithstanding the well-worn adage that settlement occurs “in the shadow of the law,” scholars have shown that non-merits factors exert significant influence on settlement outcomes. Less attention has been given, however, to the ways in which the influence of these factors on settlement outcomes is a product of basic structural features of the Federal Rules themselves. Because of the way in which the Rules were set up to operate, the “shadow of the law” that is cast on settlements is fading. Further, litigants’ increased reliance on prior settlements as “precedent” for future settlement decisions may move settlement even further out of the “shadow of the law” and into the “shadow of settlement” itself.

This Article then traces these problems to three foundational assumptions underlying the Federal Rules, all of which have been undermined by a world of settlement. In rethinking these assumptions, it considers procedural reform proposals that have been offered as discrete solutions to some of these issues, and provides a new conceptual account of these proposals as challenges to these foundational assumptions. This Article also posits that these reform efforts ought to be refined and extended with a specific view toward more systematically redesigning the basic model and operation of the Federal Rules for a world of settlement. This Article then sets forth for further consideration examples of proposals that seek to reorient current rules expressly toward the goal of aligning settlement outcomes with the merits of underlying claims. What emerges is a new vision of procedure — one in which pre-trial procedural rules do not merely facilitate trial but rather are designed to provide litigants guidance about the merits of claims for purposes of more meaningfully aligning settlement outcomes with the dictates of the substantive law. In so doing, this Article begins to lay the conceptual groundwork for the design of a new Federal Rules of Civil Settlement.

You can download this piece by visiting http://ssrn.com/abstract=1958615.

New Book on Civil Justice in International Perspective

2011-11-15T10:58:00.001-05:00

New Book: Failures of American Civil Justice in International Perspective

About the book:

Few lawyers today would say that American civil justice works well. Some say that it is oppressive and unjust. Many have given up getting it to work. America's reformers have run out of ideas. They have not proven models for fixing what they know is broken.

This book provides a comparative critical introduction to civil justice systems in the United States, Germany, and Korea. It shows shortcomings of the American system and compares them with German and Korean successes. The book shows foreign systems as a source of ideas that are proven to work. Civil justice can be just and civil.

The book is available at www.cambridge.org/9781107009936 with a 20% discount until December 31 with the discount code at checkout: S11MAXEINER.