Judges, lawyers share feedback on new discovery proportionality rules at Duke-ABA events

As the most significant changes to the Federal Rules of Civil Procedure in more than a decade begin to take hold, Duke Law and the ABA Section on Litigation have partnered to provide educational sessions in 15 cities across the country to help judges and lawyers understand the discovery rule changes.

The sessions — which have hit maximum attendance in nearly every city so far and are proving to be as “conversational” as they are “educational” — provide a unique opportunity for participants to ask candid questions and share best practices among judges and lawyers from both sides of the “v.”
Led by Judge Lee H. Rosenthal of the U.S. District Court for the Southern District of Texas and Prof. Steven Gensler of the University of Oklahoma College of Law, these ‘roadshows’ grew out of a project launched at a 2010 Duke Conference that assessed the state of civil litigation. Some of the ideas generated at that conference led to the rules amendments that took effect on Dec. 1, 2015.

Rosenthal and Gensler also served as reporters for Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality, the result of ten months’ work by a group of 18 plaintiff lawyers and 14 defense lawyers who attended a 2014 Duke conference on the then-pending rules amendments. The final document, published in the November 2015 Judicature and on the Duke Law Center for Judicial Studies website, has been “a very effective way to encourage and facilitate spirited discussions referenced at the roadshows,” Judge Rosenthal said.

Because the rules changes are both so significant and rather controversial, the Duke-ABA roadshows have proven to be an invaluable opportunity for practitioners and judges to gather to discuss the impact of the changes and best practices for ensuring that the changes make discovery fairer, more efficient, and less expensive.

“The Duke-ABA roadshow presentation was informative, helpful and engaging — a real accomplishment given that rules are not the liveliest of subject matter!” said Mary Anne Sedey, a leading employment discrimination lawyer with Sedey Harper Westhoff in St. Louis. “Whether the new rules — particularly proportionality — will work fairly for both plaintiffs and defendants remains to be seen, but I felt that the presentation armed me with what I will need to make the best possible arguments for my employment discrimination plaintiff clients.”

“The roadshow here in Atlanta was a great way to deal with the practicalities of implementing those goals, as are the Duke guidelines,” said Bill Norwood, a plaintiffs’ attorney with Pope McGlamry who served on the American College of Trial Lawyers Task Force on Civil Justice and helped produce “Principles to Govern Future Rulemaking” in 2009. He also attended the 2010 Duke Conference. “Future programs along this line are needed to reach and teach our profession to return to a profession of persons dedicated to doing justice rather than a business designed to make a profit only. The new rules clearly are designed to make the aspirational goal of Rule 1 [the just, speedy, and inexpensive determination of every action and proceeding] a reality, by institutionalizing proportionality and a culture change.”

Norwood noted that Chief Justice John Roberts issued a “clarion call” for that culture change in his 2015 end-of-year report, which was dedicated to the rules changes and emphasized the need for further training and educational programs for lawyers and judges.

“Training is necessary for lawyers too, and the American Bar Association and many local bar organizations have initiated educational programs and workshops across the country,” wrote the Chief Justice. “In addition, a wide variety of judicial, legal, and academic organizations have supplied key insights in the improvement of both federal and state rules of practice, and they are continuing to provide their perspectives and expertise on the rollout of the new rules. I am confident that the Advisory Committee on Civil Rules will continue to engage the full spectrum of those organizations in its ongoing work.”

Indeed, the roadshows have yielded robust discussion among lawyers, judges, and scholars on how the changes will work in real life. John Rabiej, director of the Duke Law Center for Judicial Studies, told Metropolitan Corporate Counsel that the discussions were giving participants a chance to voice concerns and ask questions.

“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 said in an article in the newsletter’s December edition, noting that the rules explicitly require judges to consider the “importance of the issues at stake” in the proportionality analysis.

Plaintiffs’ lawyers in particular have expressed unease about the new amendments. Elizabeth Cabraser, a partner at Lieff Cabraser Heimann & Bernstein in San Francisco and a member of the Civil Rules Committee, told the ABA Journal that “in the near term, the re-emphasis on proportionality will be the most confounding to plaintiffs’ counsel, largely because it is perceived as a new restriction on the bounds of discovery. This is an unfortunate perception, but it will be overcome as plaintiffs’ counsel learn that proportionality is also a protection of the right to insist on, and obtain, the information, evidence, and testimony that they need. It does put a premium on planning — but that is the point of the pretrial process anyway.”

Several participants in the roadshows said the discussion and the Duke Guidelines have been helpful in highlighting the broader potential in the rules changes for ensuring fairer discovery processes across the board.
“As a plaintiffs’ employment lawyer, I welcome the changes and the more streamlined approach to discovery that the amendments promise to ensure,” said Laura Carlin Mattiacci, an attorney with Console Law Offices who attended the roadshow in Philadelphia. “The roadshow is a unique and invaluable opportunity to hear directly from the judges on how the amendments will be implemented in real life.”

“I found the Guidelines and Practices very helpful to understanding the new rules,” said Ellen Meriwether of Cafferty Clobes Meriwether & Sprengel. “As plaintiff’s counsel often in the role of the propounding party, I intend to rely on the Guidelines and Practices in meet-and-confers with defense counsel and in papers before the court.”

Meriwether, who specializes in antitrust class-action litigation, specifically cites the fourth Duke guideline as helping to underscore the benefits of the new rules for her clients: “The guidelines make it clear that the burden is not on plaintiffs to justify proportionality in advance, that boilerplate objections by the responding party are not allowed, and the fact that my client may not have a lot of discoverable information does not bear on defendant’s obligations to produce discovery.”

Of course, the robust discussion around the impact of the rules is the reason the roadshows are proving to be so valuable. “The real point of the programs — and their real value — is to start a dialogue between local judges and local lawyers on both sides of the ‘v’ about how the proposed new rules can be used to their best effect and in a way that is fair to everyone,” Gensler told the ABA Journal. “There’s no one-size-fits-all approach. The local programs give lawyers and judges a chance to think about practices and solutions that make the most sense for them in light of local conditions and culture.”

The roadshows are also providing an opportunity to gather feedback and ideas for revisions and refinements to future iterations of the Guidelines. Rabiej says the document will be updated as the rules are put into practice, case law develops, and the impact of the amendments is better understood. The center plans to conduct a survey later this year to collect empirical data on the impact of the amendments.

“Ultimately,” Rabiej said, “the goal is to share information and best practices so we can achieve what these rules are designed to foster: targeted discovery processes that are fairer, less expensive, and more effective in achieving justice — for all parties.”

Melinda Vaughn is managing editor of Judicature.