Civil Rules 2015—Early and Active Case Management
Articles Blog

Civil Rules 2015—Early and Active Case Management

January 22, 2020


HELLO. I AM JUDGE DAVE CAMPBELL OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ARIZONA. I AM THE FORMER CHAIR
OF THE ADVISORY COMMITTEE ON THE FEDERAL RULES
OF CIVIL PROCEDURE. AS WE HAVE MENTIONED
IN EARLIER VIDEOS, ONE OF THE PRIMARY CONCLUSIONS OF THE MAY 2010 CIVIL RULES
CONFERENCE WAS THAT OUR CIVIL
LITIGATION SYSTEM SHOULD BE IMPROVED SIGNIFICANTLY THROUGH EARLIER AND MORE ACTIVE
MANAGEMENT OF CASES BY JUDGES. SURVEYS COMPLETED BEFORE
THE 2010 CONFERENCE REACHED THE SAME CONCLUSION. 70% OF THE RESPONDENTS FROM
THE ABA SECTION OF LITIGATION AGREED THAT EARLY INTERVENTION
BY JUDGES HELPS TO NARROW ISSUES
AND REDUCE DISCOVERY. 73% AGREED THAT LITIGATION
RESULTS ARE MORE SATISFACTORY WHEN A JUDGE ACTIVELY MANAGES
A CASE FROM THE BEGINNING AND STAYS INVOLVED. RESULTS FROM THE SURVEY OF THE NATIONAL EMPLOYMENT
LAWYERS ASSOCIATION WERE SIMILAR. 2/3 OF RESPONDENTS AGREED
THAT OVERALL LITIGATION RESULTS ARE MORE SATISFACTORY WHEN
A JUDGE ACTIVELY MANAGES A CASE. ONE OF THE CONCLUSIONS
FROM THE SURVEY OF THE FELLOWS OF THE AMERICAN
COLLEGE OF TRIAL LAWYERS WAS PHRASED IN THIS WAY: “JUDGES SHOULD HAVE
A MORE ACTIVE ROLE “AT THE BEGINNING OF THE CASE “IN DESIGNING THE SCOPE
OF DISCOVERY “AND THE DIRECTION AND TIMING
OF THE CASE ALL THE WAY TO TRIAL.” AS YOU KNOW, THE IDEA OF EARLY
ACTIVE CASE MANAGEMENT IS ALREADY FOUND IN THE RULES
OF CIVIL PROCEDURE. RULE 16 WAS AMENDED IN 1983 TO PROVIDE FOR EARLY
INTERVENTION BY JUDGES IN THE MANAGEMENT OF CASES, THE SETTING OF CLEAR LITIGATION
SCHEDULES TAILORED TO THE NEEDS
OF THE CASE, AND THOROUGH PREPARATION
FOR TRIAL. THE ADVISORY COMMITTEE NOTE
TO THIS 1983 AMENDMENT INCLUDED THIS STILL RELEVANT
OBSERVATION: “WHEN A TRIAL JUDGE INTERVENES
PERSONALLY AT AN EARLY STAGE “TO ASSUME JUDICIAL CONTROL
OVER A CASE “AND TO SCHEDULE DATES
FOR COMPLETION BY THE PARTIES “OF THE PRINCIPAL
PRETRIAL STEPS, “THE CASE IS DISPOSED
OF BY SETTLEMENT OR TRIAL “MORE EFFICIENTLY
AND WITH LESS COST AND DELAY THAN WHEN THE PARTIES ARE LEFT
TO THEIR OWN DEVICES.” DESPITE THE EXISTING RULES,
INCLUDING THESE 1983 AMENDMENTS, PARTICIPANTS
IN THE 2010 CONFERENCE OBSERVED THAT MANY
FEDERAL COURT CASES RECEIVE LITTLE ACTIVE MANAGEMENT FROM THE ASSIGNED DISTRICT
OR MAGISTRATE JUDGES. THE NEW AMENDMENTS TO THE FEDERAL RULES
OF CIVIL PROCEDURE ARE DESIGNED TO ENCOURAGE
MORE EFFECTIVE USE OF MANAGEMENT TOOLS ALREADY
FOUND IN THE CIVIL RULES. THEY DO NOT BREAK NEW GROUND, BUT INSTEAD EMPHASIZE
THE IMPORTANCE OF EARLY, HANDS-ON,
AND CONTINUING CASE MANAGEMENT. THE RULE AMENDMENTS
INCLUDE 4 CHANGES. FIRST, THE TIME FOR SERVICE
OF A COMPLAINT IS REDUCED FROM 120 DAYS
TO 90 DAYS, AND THE TIME FOR HOLDING AN INITIAL CASE MANAGEMENT
CONFERENCE IS ALSO REDUCED BY 30 DAYS. THE CONFERENCE WILL NOW
BE REQUIRED 90 DAYS AFTER ANY DEFENDANT
HAS BEEN SERVED OR 60 DAYS AFTER ANY DEFENDANT
HAS APPEARED. THE INTENT OF THESE CHANGES IS TO PROVIDE FOR EARLIER
INVOLVEMENT BY JUDGES IN THE MANAGEMENT OF CASES. THE COMMITTEE NOTE RECOGNIZES THAT MORE TIME MAY BE REQUIRED
IN SOME CASES, BUT THE GENERAL INTENT IS TO LAUNCH JUDICIAL CASE
MANAGEMENT EARLIER IN THE MAJORITY OF CASES
FILED IN FEDERAL COURT. SECOND, RULE 16 IS AMENDED
TO ENCOURAGE JUDGES AND PARTIES TO ENGAGE IN LIVE, INTERACTIVE
COMMUNICATION AT THE INITIAL CASE MANAGEMENT
CONFERENCE. THE AMENDMENTS DELETE
THE LANGUAGE IN RULE 16(B)(1)(B), WHICH SAYS THAT SUCH CONFERENCES
MAY BE HELD BY TELEPHONE, MAIL,
OR OTHER MEANS. ALTHOUGH THE RULES STILL
PERMIT JUDGES TO ENTER CASE MANAGEMENT ORDERS
WITHOUT A LIVE CONFERENCE IN CASES WHERE A CONFERENCE
TRULY IS NOT NECESSARY, THE COMMITTEE NOTE EMPHASIZES
THAT SUCH CONFERENCES ARE ALMOST ALWAYS
THE MOST EFFECTIVE WAY FOR A JUDGE TO IDENTIFY
THE NEEDS OF A CASE AND ENTER AN ORDER TAILORED
TO PROVIDE FOR ITS MOST
EFFICIENT RESOLUTION. LIVE CONFERENCES MAY BE HELD
UNDER THE AMENDED RULE IN PERSON, BY TELEPHONE,
OR BY VIDEO OR INTERNET LINK. THE IDEA IS TO HAVE A REAL-TIME
EXCHANGE WITH THE PARTIES THAT RESULTS IN FULLY INFORMED
AND ACTIVE MANAGEMENT BY THE JUDGE. THIRD, THE AMENDMENTS ENCOURAGE
JUDGES AND THE PARTIES TO CONSIDER ADOPTING
A REQUIREMENT THAT DISCOVERY DISPUTES
BE DISCUSSED WITH THE JUDGE IN A HEARING
OR TELEPHONE CONFERENCE BEFORE DISCOVERY MOTIONS
ARE FILED. THE MANY FEDERAL JUDGES
WHO FOLLOW THIS PRACTICE NOW FIND THAT IT IS A PROCESS THROUGH WHICH MOST DISCOVERY
DISAGREEMENTS CAN BE RESOLVED
IN THE CONFERENCE WITH NO NEED FOR THE COSTLY
AND TIME-CONSUMING PROCESS OF BRIEFING AND DECIDING
DISCOVERY MOTIONS. IN ADDITION TO THE COST
AND TIME SAVINGS, CASES THAT INCLUDE
THIS PROCEDURE STAY ON SCHEDULE BECAUSE DISCOVERY DISAGREEMENTS
ARE RESOLVED PROMPTLY. MANY JUDGES FEEL THAT THIS IS THE SINGLE MOST
EFFECTIVE PRACTICE IN KEEPING DISCOVERY ON TRACK AND MINIMIZING UNNECESSARY
DISCOVERY COSTS. FOURTH, THE NEW AMENDMENTS ADD
TWO IMPORTANT TOPICS TO BE CONSIDERED AND DISCUSSED
AT THE RULE 16 CONFERENCE: THE PRESERVATION
OF ELECTRONICALLY STORED INFORMATION, OR ESI, AND THE ENTRY OF ORDERS UNDER
FEDERAL RULE OF EVIDENCE 502. AS YOU KNOW, THE GROWTH OF ESI HAS GREATLY COMPLICATED CIVIL
LITIGATION AT ALL LEVELS. THE LOSS OF ESI THAT SHOULD
HAVE BEEN PRESERVED FOR A CASE OFTEN PRESENTS SERIOUS PROBLEMS
IN RESOLVING THE CASE FAIRLY AND RESULTS IN MUCH
SATELLITE LITIGATION CONCERNING REASONS FOR THE LOSS
AND POSSIBLE SANCTIONS. THE AMENDMENT CALLS
FOR THE PARTIES TO DISCUSS THE PRESERVATION
OF ESI DURING THE RULE 26(F) CONFERENCE AND IN THE INITIAL CASE
MANAGEMENT CONFERENCE WITH THE COURT. THIS PRACTICE MAY LEAD
TO THE PARTIES AGREEING UPON AN ESI
PRESERVATION AND DISCOVERY PROTOCOL OR MAY RESULT IN THE COURT
ENTERING ORDERS THAT GOVERN THESE ISSUES. THE HOPE IS THAT SUCH A FOCUS
EARLY IN THE CASE WILL REDUCE THE PROBLEMS
AND EXPENSE CREATED BY THE LOSS
OF RELEVANT ESI. THE FOCUS ON RULE 502 OF
THE EVIDENCE RULES IS SIMILAR. THAT RULE WAS ADOPTED TO HELP
STREAMLINE THE REVIEW AND PRODUCTION
OF LARGE VOLUMES OF INFORMATION BY LIMITING THE CIRCUMSTANCES UNDER WHICH THE ATTORNEY-CLIENT
PRIVILEGE AND WORK PRODUCT PROTECTION ARE WAIVED THROUGH
THE INADVERTENT PRODUCTION OF INFORMATION IN DISCOVERY. DESPITE ITS POTENTIAL BENEFITS, RULE 502 IS STILL WIDELY
OVERLOOKED BY LITIGANTS AND BY SOME COURTS. ADDING IT TO THE RULE 26(F)
AND THE RULE 16 TOPICS WILL REQUIRE PARTIES TO ADDRESS
IT EARLY IN THE LITIGATION THAT HOPEFULLY WILL RESULT
IN MORE LITIGATION– PARDON ME–MORE LITIGANTS TAKING
ADVANTAGE OF ITS PROVISIONS. THE FUNDAMENTAL COMPONENTS OF EFFECTIVE JUDICIAL CASE
MANAGEMENT REMAIN THE SAME: EARLY COURT INTERVENTION, THE SETTING OF A REASONABLE
BUT FIRM LITIGATION SCHEDULE, REQUIRING PARTIES
TO SHOW GOOD CAUSE BEFORE MAKING CHANGES
TO THE LITIGATION SCHEDULE, ACTIVELY MANAGING
THE SCOPE OF DISCOVERY, PROMPTLY RESOLVING
DISCOVERY DISPUTES AND OTHER ISSUES
THAT MAY DELAY THE CASE, HOLDING A MEANINGFUL
FINAL PRETRIAL CONFERENCE, AND SETTING FIRM AND CREDIBLE
TRIAL DATES. FOR MORE THAN 50 YEARS, STUDY AFTER STUDY HAS CONFIRMED THAT CASES RESOLVE MORE QUICKLY,
LESS EXPENSIVELY, AND WITH GREATER SATISFACTION
TO THE PARTIES WHEN JUDGES WORK
AS ACTIVE CASE MANAGERS. THE AMENDMENTS WE HAVE DISCUSSED
IN THIS SEGMENT ARE DESIGNED TO ENCOURAGE
BETTER CASE MANAGEMENT PRACTICES BY ALL JUDGES, BUT ONLY YOU CAN MAKE THEM
EFFECTIVE IN YOUR CASES. PLEASE CONSIDER CAREFULLY
THE OPPORTUNITY PROVIDED BY THESE
RULE AMENDMENTS TO PRESERVE AND TO IMPROVE
YOUR JUDICIAL CASE MANAGEMENT. WE WILL DO THE SAME. THANK YOU.

Leave a Reply

Your email address will not be published. Required fields are marked *