The End of an Era? Federal Civil Procedure After the 2015 Amendments

• Publication year: 2016

The End of an Era? Federal Civil Procedure After the 2015 Amendments

Adam N. Steinman

THE END OF AN ERA? FEDERAL CIVIL PROCEDURE AFTER THE 2015 AMENDMENTS

Adam N. Steinman^*

ABSTRACT

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.

This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee's earlier proposals and supporting documents, the final amendments—in light of their text, structure, and accompanying advisory committee notes—should be interpreted to preserve notice pleading and a robust discovery process. The more significant lesson of the 2015 amendments, therefore, may be to confirm the view that the amendment mechanism of the Rules Enabling Act is unlikely to generate consequential changes to the Federal Rules (for better or for worse). The process leading to the 2015 amendments was teed up almost perfectly for opponents of meaningful access and enforcement to make real, detrimental changes to federal pleading and discovery standards. Yet the final amendments ultimately did not do so.

Accordingly, the key battleground following the 2015 amendments will be in the federal courts themselves, as judges are called upon to interpret and apply the rules in particular cases. No doubt aware of this fact, Chief Justice Roberts has taken various steps to spin the recent amendments as making more significant changes than they actually do. These post-amendment moves are not legally authoritative and do not modify the law of civil procedure. But the Chief

Justice and his allies may win the day if they are able to dominate the gestalt surrounding the 2015 amendments in a way that persuades lower court judges to take a more restrictive approach. Properly interpreted, the 2015 amendments do not support the Chief's narrative. Recognizing this will be crucial for ensuring access and enforcement going forward.

INTRODUCTION.................................................................................................3

I. THE PATH TOWARD PROCEDURAL RECALIBRATION?...........................8

A. A Brief History of the Federal Rules ............................................ 9
B. The Shot(s) Heard Round the World: Twombly, Iqbal, and Why They Matter ................................................................................ 14
C. Initial Steps in the Rulemaking Process ..................................... 17

1. The 2010 Duke Conference .................................................. 18
2. The 2013 Proposal ............................................................... 19

II. REACTION TO THE PROPOSED AMENDMENTS......................................22

A. Responses from Attorneys, Judges, and Academics ................... 23
B. Post-Comment Revisions to the Proposed Amendments ............. 26

III. THE 2015 AMENDMENTS: A CLOSE READING.....................................28

A. Scope and Proportionality .......................................................... 28
B. Admissibility and Discovery....................................................... 33
C. Eliminating Discovery's "Second Tier"..................................... 35
D. Deleting Examples of Relevant Matter....................................... 37
E. Protective Orders and Cost-Shifting .......................................... 38
F. Elimination of the Pleading Forms ............................................ 40
G. A Few Words on Interpretive Methodology................................ 42

IV. BEYOND THE 2015 AMENDMENTS: LESSONS AND CHALLENGES........44

A. Civil Procedure's Post-Legislative Era ...................................... 44
B. Post-Adoption Developments ..................................................... 48

CONCLUSION...................................................................................................52

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INTRODUCTION

On December 1, 2015, a set of controversial amendments to the Federal Rules of Civil Procedure took effect.¹ The five-year-long rulemaking process that culminated in these amendments focused most intensely on pleading standards and access to discovery. These two procedural issues are crucial to the judicial enforcement of substantive legal rights and obligations because, in many cases, the evidence and information needed to prove a substantive claim remains in the hands of the defendant.² The pleading standard matters because too strict a standard could create an insurmountable Catch-22: plaintiffs would need court-supervised discovery to obtain the information needed to get past the pleading phase, but they could not invoke the discovery process unless they survived the pleading phase.³ And the scope of discovery matters because—even if a case gets past the pleading phase—too restrictive an approach to discovery can make it impossible to obtain the information needed for judicial enforcement to succeed.⁴

The rulemaking machinery that led to the 2015 amendments, however, was not driven by a desire to facilitate meaningful access to the courts or to promote effective enforcement of substantive rights. Rather, many involved in the process embraced the all-too-common critique that lenient pleading standards and the ability to compel one's adversary to provide discovery invite frivolous lawsuits, unwarranted litigation costs, and lengthy delays in resolving disputes.⁵

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Such criticisms have been frequently debunked as empirically unsupported and conceptually incoherent,⁶ but this "cost-and-delay narrative"⁷ featured prominently in the conferences, reports, memoranda, and agenda books that were generated during the rulemaking process.⁸ It seemed to many, then, that the 2015 amendments would undermine the simplified, merits-driven approach put in place by the original drafters of the Federal Rules.

But that is not what happened. Consider, for example, the proportionality considerations that have been codified in the Federal Rules for more than three decades. As the current amendments were making their way through the Rules Enabling Act process, many worried that proportionality would become a more significant obstacle to discovery.⁹ In fact, the text and structure of the amendments that were ultimately adopted—as well as their accompanying advisory committee notes—do not compel or suggest that federal courts should balance these considerations in a more restrictive way.¹⁰ Likewise, the biggest concern regarding pleading standards—the 2015 amendments' elimination of the pleading forms contained in the rules' appendix—was mitigated by a clarifying note stating explicitly that deleting the forms "does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8."¹¹

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This is not to defend the 2015 amendments. The best that can be said for them is that they left the status quo largely in place, and that is hardly a resounding endorsement. But for those who are justifiably concerned about the potential for more restrictive pleading and discovery standards to obstruct access and to weaken enforcement, this should be welcome news.

In doing so little, however, the 2015 amendments mark another kind of transformation. They seem to confirm the view that the rules amendment process is unlikely to yield significant changes to the Federal Rules of Civil Procedure (for better or for worse). The process leading toward the 2015 amendments was teed up almost perfectly for the cost-and-delay narrative to change the rules of civil procedure in detrimental ways. Yet those efforts failed. That failure, in fact, parallels unsuccessful attempts in Congress to legislate more restrictive approaches to important procedural issues.¹²

The current state of affairs—which stems from a combination of developments in recent years¹³ —might be called a post-legislative era in civil procedure. While this situation has the potential upside that neither the rules amendment process nor Congress is likely to make legislative changes that will subvert the original vision of the Federal Rules, other institutions may pose more serious threats. First and foremost, there is the Supreme Court, which institutionally may be better positioned than either Congress or the rule amendment process to take civil procedure down a more restrictive path.¹⁴ This concern may seem self-evident given the controversy surrounding many of the Court's recent decisions on civil procedure.¹⁵

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But for the key issues that were the focus of the 2015 amendments, it is less clear than one might suspect that the Supreme Court will impose more restrictive approaches by handing down precedent-setting decisions on discovery and pleading standards. A district court's ruling on whether a particular discovery request comports with proportionality considerations, for example, is an interlocutory ruling that is rarely subject to appellate review (much less Supreme Court review).¹⁶ Pleading standards, of course, were the subject of the Supreme Court's controversial decisions in Bell Atlantic Corp. v. Twombly¹⁷ and Ashcroft v. Iqbal.¹⁸ But those decisions did not necessarily mandate a stricter approach to pleading—indeed, more recent Supreme Court decisions suggest otherwise.¹⁹ So although empirical studies indicate that federal courts have (at least for some kinds of cases) applied pleading standards more restrictively after Twombly and Iqbal,²⁰ one explanation may be that lower courts have been misinterpreting those decisions.²¹

There is a crucial lesson in this as courts and scholars try to...