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Need for Change Balanced by Deliberate Pace: An Interview with Judge Lee H. Rosenthal
Q: In December 2007, Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) introduced S. 2450, a bill adding Rule 502 to the Federal Rules of Evidence. Why is this legislation necessary?
A: For years, lawyers on both sides of the "v." have asked the rules committees to do something about the costs of and time spent on privilege review. The rules committees studied this problem in connection with proposals to change the discovery rules. During this process, the House Judiciary Committee asked the Judicial Conference to consider changes to the privilege waiver rule. After a lot of work, the rules committees concluded that the need for exhaustive preproduction privilege reviews could be significantly reduced if the risks of waiver were clarified and limited. New Evidence Rule 502 provides a consistent and predictable standard for determining the consequences of inadvertently disclosing privileged material, less onerous than under current law in some jurisdictions. While courts can under present law enter orders providing that disclosing privileged documents in discovery won't waive the privilege, such orders are only enforceable as to the parties. Under Rule 502, such orders would be enforceable as to third parties in subsequent cases or proceedings. The rule’s added protections will help reduce the need for exhaustive, costly, and time-consuming preproduction review.
Unlike other rule changes that go through the rulemaking process, Congress must affirmatively enact Rule 502 by legislation because the rule affects privilege. So this rule first went through the multi-year, multi-layered review of the Rules Enabling Act process and now is working its way through the legislative process. The proposed rule enjoys wide support among bar organizations and by plaintiff and defense lawyers. The fact that S. 2450 is jointly sponsored by Senators Leahy and Specter is a clear sign that it is recognized as a nonpartisan, good-government law. The Senate Judiciary Committee favorably reported the rule on January 31, 2008. We hope for swift passage of a rule that has real promise to reduce some of the worst costs and burdens in civil discovery.
Q: The rules committees have proposed amending the rules on calculating time periods and extending a number of deadlines set in the rules. Why? What is the effect of these proposed amendments?
A: For years, the rules committees have heard lawyers and litigants complain that the rules governing how to calculate time periods and deadlines are inconsistent and unnecessarily confusing, leading to costly mistakes. Even courts have a hard time getting this right, which can lead to embarrassment for judges and harsh consequences for litigants.
The biggest problem with the current rules comes from excluding weekends and legal holidays when figuring out some deadlines but not others. Under the proposed amendments to the Appellate, Bankruptcy, Civil, and Criminal Rules, "days" are treated as "days," with no exclusions for weekends or holidays, and the method for figuring out a deadline is the same for each set of rules.
We recognized that including weekends and holidays effectively shortens many existing periods. So we looked at every period and made adjustments to take into account the effect of the days-are-days approach. Most of the short periods are extended and expressed in multiples of 7 days— 7, 14, 21—so that filing deadlines will usually fall on a weekday. Most 10-day periods become 14-day periods.
One last task remains. Some statutes have time periods involving court filings that could be affected by the proposed rule changes. We have identified a relatively small number that should be amended to be sure that the statutes and rules are consistent. We plan to work closely with Congress to achieve this consistency and to coordinate the effective dates of rule and statutory changes.
Q: In December 2006, the rules on discovery of electronically stored information changed. What has been the reaction of attorneys to these changes?
A: In some ways, it is too early to tell. Lawyers and litigants continue to express great concern about the expense and burdens of electronic discovery. The rule changes have helped focus attention on electronic discovery and provide guidance, which has been well received. Early attention to electronic discovery is extra work for lawyers and judges, but recent opinions have made it even clearer that failing to manage such discovery early, dealing with questions like what steps have to be taken to meet preservation obligations, what sources of information have to be searched, and how to produce the information, leads to big problems later.
The 2006 rule changes can't solve all the problems that today's information technology raises for discovery. But the rule changes were an important first step to making sure the discovery rules didn't get too far removed from the way the cases are actually handled. The rules committees will continue to study this area as it develops to be sure we have the tools needed to keep discovery reasonable and fair for each case.
Q: Do you have concerns about the frequency of rule amendments? Do you see the last few years as a time of unusual activity?
A: Recent years have seen unusual activity. The technology changes that led to electronic discovery and electronic filing created the need for rule changes. Besides the E-Government Act, Congress passed other legislation that required rule amendments, including the 2004 Crime Victims' Rights Act and the 2005 statute amending the Bankruptcy Code.
All of this activity has, of course, heightened our concern that we not make too many changes in too short a time. We balance our desire for improvement with the recognition that change has costs. The Advisory Committees and the Standing Committee do a great job of requiring the proponents of each proposed rule change to make the case for that change. We often decide not to move on proposals for rule changes because of concern about the burden on the bench and bar. Whether to impose this burden is an issue we face at every stage of the process.
Q: Public comment is solicited as part of the rulemaking process. Has public comment been helpful?
A: It's not just helpful, it's indispensable. And we don't just rely on the formal publication-for-comment part of the Rules Enabling Act. We often solicit comments when we begin to consider proposals for rule changes. We make sure we hear from both plaintiff and defense perspectives and from a variety of practice areas. This input is vital.
We often hear from lawyers, bar organizations, and academics. We would like to hear more from judges. I encourage judges to submit comments on proposed rule changes, ideas for new rule changes, and observations on how rules are working, either well or poorly.
Q: What major projects are underway?
A: The Evidence Rules Committee has embarked on a restyling project, the fourth set of rules to be edited to improve clarity without changing substance. This work follows the successful style work on the Appellate, Criminal, and Civil Rules. We hope to publish these proposed changes for public comment in August 2009.
The Civil Rules Committee is working on two principal projects. One is on summary judgment. Rule 56 has not been revised in any significant way for over 40 years. To say that summary judgment practice has changed in that period is beyond understatement. The Committee is not seeking to make substantive changes to the standards governing when to grant or deny summary judgment. Those are best left to case-law development. But a lot can be done to make the procedure for litigating summary judgment motions more consistent, predictable, and efficient. The Committee is also looking at the Rule 26 provisions on expert witness disclosures. These rules were changed in 1993. Bar organizations, national and state, and many lawyers have criticized some of those changes as generating wasteful and expensive pretrial practices.
All the committees have had full agendas. The Criminal Rules Committee continues to monitor the implementation of the Crime Victims' Rights Act in federal courts. The Bankruptcy Rules Committee is working with other committees on an ambitious project to modernize forms. The Appellate Rules Committee is examining the effect of recent Supreme Court cases to see if they present a need for rule changes. All this work is balanced by the deliberate pace of the rulemaking process and by the need to let the bench and bar digest the changes that were recently made and that will be coming in the next few years.
Q: If attorneys or judges believe that something is wrong with a rule, how do they transmit their concerns to the committee?
A: All communications to the rules committees should be sent to the Secretary of the Committee on Rules of Practice and Procedure at the Administrative Office. The easiest way to transmit a comment is to log on to a committee's rulemaking website at www.uscourts.gov/rules. The website contains a wealth of information on the status of proposed rule changes along with an email address to send comments. We hope you will.