Judicial Conference approves new Federal Rules of Civil Procedure

Proposed changes to the Federal Rules of Civil Procedure moved one step closer to passage last month when the Judicial Conference approved controversial new Rule 32.1, which would allow lawyers in all circuits to cite unpublished opinions.

The Conference also adopted several changes to the Federal Rules of Appellate Procedure, including some concerning electronic discovery.

The changes still face two obstacles prior to taking effect: the Supreme Court must approve the new rules and transmit them to Congress for adoption.

Assuming no changes are made, the electronic discovery rules would go into effect in December 2006, with Rule 32.1 becoming official for decisions issued on or after Jan. 1, 2007.

Ken Withers, Senior Education Attorney with the Federal Judicial Center in Washington, D.C., said the chances that Congress will alter the proposed rules are extremely low.

The Supreme Court issues its annual report to Congress on the first of May, which will include all of these proposed rules, and Congress then has six months to lodge objections, he explained. It's safe to assume these rules will go into effect as they are now.

Withers said the new electronic discovery rules do not represent a radical change.

What these rules do is send a very clear signal that electronic discovery is indeed discovery, he said. Lawyers need to assume discovery will involve electronic information and become familiar with their clients' electronic record-keeping system, so that they can plan ahead, sit down with opposing counsel and work out an e- discovery plan.

The rule change regarding unpublished opinions faced serious opposition and will mainly affect four circuits - the 2nd, 7th, 9th and Federal Circuits - that explicitly ban the citing of unpublished opinions for precedential purposes. Another six circuits discourage the use of such opinions.

Howard Bashman, an appellate litigator in Willow Grove, Pa., praised the change.

The rule is definitely a great improvement for those rare instances when there is a helpful unpublished opinion that ought to be discussed fully in front of an appellate court, he said. You can be assured that if a lawyer finds an unpublished opinion in his research, the judges and law clerks came across it too, so why not have the benefit of hearing what parties have to say about it?

He also noted that First Amendment issues come into play.

If lawyers can cite Shakespeare or the Federalist papers - things that aren't precedent - as information for the court to consider, then why should judges own work products be off limits? Bashman asked.

The Judicial Conference, the policy-making arm of the federal judiciary, consists of the chief judges of the 13 circuits, a U.S. District Court judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade.

The Chief Justice of the U.S. Supreme Court serves as the presiding officer, with Justice John Paul Stevens filling in for this year's annual September meeting.

In addition to rule changes, the Conference chose not to take a formal position on legislation that seeks to restructure the 9th Circuit. The members did express concern about the necessary funding for a new circuit and warned it would oppose legislation that did not adequately provide for new structures.

'A Nationwide Permissive Rule'

Before the Internet, opinions from the Circuits were printed and bound. But with the courts facing an ever-expanding number of decisions, judicial authorities in the 1960s began the use of unpublished opinions - decisions that were not included in the volumes because they weren't making new law, Boalt Hall School of Law Professor Stephen Barnett explained.

Unpublished is actually a misnomer, he added.

Because the decisions can be found on the web - sometimes even on a court's own website, the debate is whether there should be rules banning citation of these so-called 'unpublished' opinions, he said.

Today, 80 percent of federal appellate court opinions are classified as unpublished, not for publication, non-president, or not precedent.

The debate over these opinions began in earnest a few years ago when an 8th Circuit panel held that the local no-citation rule was unconstitutional, Bashman noted. (Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000).

But when a proposed change was floated, some protested.

The real opposition that the rule received was from lawyers and judges in the 9th Circuit, who staged a letter-writing campaign, Bashman said.

The Advisory Committee on Appellate Rules heard a great deal of testimony and ultimately decided to recommend the approval of the proposed rule.

Barnett, who has written extensively on the subject, said research was the turning point in the debate. The Federal Judicial Center conducted extensive interviews with attorneys and judges in all circuits, where the overwhelming response was that including unpublished or non-cited opinions did not increase the judicial or attorney workload.

In addition, the organization tracked circuits that had changed the rule to see its impact on the docket.

One of the primary claims was that if the opinions can be cited, it will take longer to get them out. It was similarly claimed that courts would react to the change by using more one-line dispositions, without writing an opinion at all, Barnett explained.

But the research, going back two years before the rule change and then two years following, showed no evidence of either problem, he said.

The opponents [of the changed rule] predicted a parade of horribles would ensue, and it just didn't happen, he said.

And the rule leaves some room for flexibility, Bashman said, describing it as a nationwide permissive rule.

Barnett emphasized that individual circuits will still decide what weight to give to unpublished opinions.

It may be that the opinions will not be citable as precedent, but only for their persuasive value, or it may be that the circuit decides that the opinions may be cited as precedent, he said.

The chance of any changes or alterations at this point in the process would be unusual, Bashman added, especially since the new Chief Justice, John G. Roberts, Jr., chaired the Advisory Committee that proposed the change.

Barnett noted that the federal change may spur state court changes as well.

Right now, about half of the states have no-citation rules, he said. It will be interesting to see the impact of federal change on state court rules.

Electronic Discovery Changes

Withers noted that the Advisory Committee spent five years working on the electronic discovery rule changes.

These rules represent a very well-worked out consensus of what the best practices already are and should be in e-discovery, he said.

The proposed rule changes emphasize early preparation for electronic discovery issues. The new Rule 26(f) mandates that parties develop a discovery plan during their pre-trial conferences.

While the specifics of the discussion will vary depending on the type of case, they should include the form in which the electronically saved data will be produced how accessible the information is, the time period in which the information will be produced, and the preservation of any information that may be deleted or overwritten in the system.

Withers acknowledged that some of the new changes generated some controversy.

Commonly referred to as the two-tiered system of electronic discovery, the new Rule 26(b)(2) separates electronically stored information into two categories.

Reasonably accessible information must be produced according to the same rules as traditional paper discovery, but the second tier of data - information that is not reasonably accessible to the responding party - requires a requesting party to first seek a court order after showing good cause for the request.

The proposed change does not define the term reasonably accessible, but notes from the Committee suggest that information that is routinely accessed or used would be considered accessible.

Withers said the rule change is based on the conventional paper world of discovery - producing the easy stuff first, and dealing with the more complicated issues second.

The proposed changes to Rule 26(b)(5) address the accidental disclosure problem when facing large amounts of electronic data. Because it may be difficult for the responding party to review each e-mail for privilege issues, 26(b)(5)(B) creates a system for such accidental disclosures.

Within a reasonable amount of time, the responding party can assert privilege, and the requesting party must then return, sequester or destroy the privileged information.

Proposed changes to Rules 33 and 34 update the document production request language in the rules to include electronic discovery in the terminology.

The accidental disclosure rule does not make new law in the area of privilege, Withers emphasized, but the idea is that we have rules and we play the game like adults, without grabbing for an extra advantage.

The most controversial change, a proposal to alter Rule 37, creates a so-called safe harbor for parties who accidentally delete requested information.

Under the new Rule 37(f), absent a court order requiring preservation, a responding party may not be sanctioned for failing to provide electronic information that was lost as part of routine computer operation, if the party took reasonable steps to preserve.

This was dubbed the 'Your honor, my dog ate my discovery defense,' Withers laughed. He described the new rule as a very narrow limit on judicial power to sanction. Because the limitation is bracketed by two phrases not defined in the Committee's notes, he said it will be open to much judicial interpretation and case law development.

It's really an instruction to judges to look beyond the black and white issue of whether material was produced, and it will encourage a very nuanced discussion about the duty of preservation, Withers said.

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