Corporate counsel's guide to the new rules.

• Author: Rickerson, Stuart E.
• Position: It's a Whole New Ball Game: Playing by the New Civil Rules

The new Federal Rules of Civil Procedure are in effect, yet nearly 50 of the 94 federal district courts have either explicitly opted out of the disclosure provisions of new Rule 26(a)(1) or have adopted a local rule that differs from it, while only 32 have put the rule into effect as written.(1)

What are corporate litigation managers, with cases pending throughout the United States, to make of this crazy-quilt of old rules, new rules, deferred rules, local rules and perhaps rules to be? How will they vigorously represent their clients and not inadvertently run afoul of this patchwork? Will ethical questions arise? How will they be resolved?

Changes in a Nutshell

The changes of most significance involve Rules 11 and 26. These alone could revolutionize civil practice in the United States. Everyone will have to approach civil litigation in the federal courts more cautiously and differently from the past.

Prior

1. best of knowledge, information and belief 2. formed after reasonable inquiry

3. well grounded in fact

4. warranted by existing law or a good faith argument 5. not interposed for any improper purpose

1. Rule 11

   As with the prior Rule 11, the signing or submitting of any pleading, motion or other paper constitutes the making of certain representations to the court. Rule 11 was substantially watered down, as follows:

   New

   best of knowledge, information and belief inquiry reasonable under the circumstances have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery by a ... non-frivolous argument

   not presented for any improper purpose

   In an effort to encourage a return of some measure of decorum to the discovery process, the Advisory Committee Notes provide some guidance as to how Rule 11 is not to be used:

   * Not for "minor, inconsequential violations"

   * Not as "a discovery device"

   * Not "to test sufficiency or efficacy of allegations in the pleadings"

   * Not "to emphasize the merits of a party's position"

   * Not "to exact an unjust settlement"

   * Not "to intimidate an adversary into withdrawing contentions that are fairly debatable"

   * Not "to increase the costs of litigation"

   * Not "to create a conflict of interest between attorney and client"

   * Not "to seek disclosure of matters otherwise protected" by privileges

   In addition, changes have been made to the sanctions process under Rule 11 so that a request for sanctions must be made by written motion separate from all other documents. The imposition of sanctions has been made discretionary, not mandatory, and there is now a 21-day "notice-cure" procedure, creating what has been termed a "safe harbor." Under this process, the party requesting sanctions must send a notice to the other party of intent to move for sanctions. If the other party withdraws the "offending" document within 21 days, the motion for sanctions cannot be filed and no sanctions can be imposed. To further this end, a judge must issue a show cause order before imposing sanctions sua sponte.

   New Rule 11 also admonishes judges to limit sanctions to what is sufficient to deter the violator or others similarly situated. And finally, the changes make clear that sanctions should be levied on law firms, as the well as the individual partners and associates who filed the offending document. In other words, there is now law firm joint and several liability" for Rule 11 violations. An open question is whether this joint and several rule will have a chilling effect on otherwise permissible speech and whether it will withstand First Amendment challenges.

2. Rule 26

   New Rule 26 works monumental changes. Subsection (a) imposes and governs the new automatic disclosure provisions, which are explained elsewhere in this roundup. It should be noted that Rule 26(g) now provides for "mini-Rule 11" sanctions for failure to disclose. And just to confuse, this subsection employs the previous, not the revised, wording of Rule 11.(2)

   New Rule 26(b)(2) gives courts explicit power to impose limits on the quantity and duration of the various modes of discovery, which may be accomplished by order of a judge in a particular case or by local rule. Even prior to this change, limitations were employed by many courts and individual judges. This "new" power combines with the changes to Rules 30 and 33 imposing "presumptive"...