Civil Rules 2015—Cooperation
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Civil Rules 2015—Cooperation


HELLO, I’M JUDGE GENE PRATTER FROM THE EASTERN DISTRICT
OF PENNSYLVANIA, AND I’M A MEMBER
OF THE ADVISORY COMMITTEE ON THE FEDERAL RULES
OF CIVIL PROCEDURE. AS YOU KNOW, A NUMBER
OF AMENDMENTS TO THE CIVIL RULES WENT INTO EFFECT
ON DECEMBER 1st OF 2015. THE GENESIS FOR MANY OF THESE
CHANGES WAS A 2010 CONFERENCE SPONSORED BY THE CIVIL RULES
ADVISORY COMMITTEE ON THE STATE OF CIVIL LITIGATION
IN THE FEDERAL COURTS. THE ADVISORY COMMITTEE TOOK
THE CONFERENCE FINDINGS, AND OVER THE COURSE OF
ABOUT 4 YEARS AND MANY MEETINGS, WE DEVELOPED AMENDMENTS
TO SEVERAL RULES. THOSE AMENDMENTS HAVE NOW
BEEN APPROVED UNANIMOUSLY BY THE ADVISORY COMMITTEE, THE STANDING COMMITTEE ON THE RULES OF PRACTICE
AND PROCEDURE, THE JUDICIAL CONFERENCE
OF THE UNITED STATES, AND THE SUPREME COURT. BECAUSE CONGRESS DID NOT ACT TO REJECT OR ALTER
THE PROPOSED AMENDMENTS, THEY HAVE NOW TAKEN EFFECT. THE RULE AMENDMENTS ARE DESIGNED
TO ACHIEVE 4 MAIN GOALS: INCREASED COOPERATION AMONG
CIVIL LITIGANTS AND LAWYERS, GREATER PROPORTIONALITY
IN DISCOVERY, EARLIER AND MORE ACTIVE CASE MANAGEMENT BY JUDGES, AND GUIDANCE
FOR THE PRESERVATION AND LOSS OF ELECTRONICALLY
STORED INFORMATION. WE HAVE PREPARED 4 VIDEOS
TO ADDRESS THESE 4 SUBJECTS, AND THIS IS THE FIRST. WE HOPE THESE VIDEOS
WILL HELP YOU UNDERSTAND THE NATURE
OF THE NEW AMENDMENTS AND HOW THEY CAN BE USED
BY JUDGES AND LAWYERS TO MAKE CIVIL LITIGATION MORE
EFFICIENT AND LESS EXPENSIVE. I WILL DESCRIBE AN IMPORTANT
CHANGE MADE TO RULE 1 OF THE FEDERAL RULES
OF CIVIL PROCEDURE. THE 2010 CONFERENCE
INCLUDED SOME 200 JUDGES, LAWYERS, AND ACADEMICS FROM ALL AROUND THE COUNTRY. THE PARTICIPANTS WERE SELECTED TO REPRESENT A WIDE RANGE
OF VIEWS, INCLUDING THE VIEWS
OF PLAINTIFFS AND DEFENDANTS IN LARGE CASES AND SMALL ONES. A NUMBER OF SURVEYS WERE ALSO
COMPLETED BEFORE THE CONFERENCE AND INCLUDED MEMBERS OF
THE ABA SECTION OF LITIGATION, FELLOWS OF THE AMERICAN COLLEGE
OF TRIAL LAWYERS, AND MEMBERS OF THE NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, AMONG OTHER MANY GROUPS. THE SURVEY RESPONDENTS AND
THE 2010 CONFERENCE PARTICIPANTS AGREED THAT CIVIL LITIGATION IS RESOLVED MORE QUICKLY
AND LESS EXPENSIVELY WHEN PARTIES AND LAWYERS
COOPERATE. AS JUST ONE EXAMPLE,
SOME 95% OF THE MEMBERS SURVEYED IN THE ABA LITIGATION SECTION AGREED THAT COLLABORATION
AND PROFESSIONALISM BY ATTORNEYS REDUCED CLIENT COSTS. TO ENCOURAGE
GREATER COOPERATION, THE ADVISORY COMMITTEE
HAS AMENDED RULE 1, WHICH, AS YOU KNOW,
ADDRESSES THE SCOPE AND PURPOSE OF ALL OF THE RULES
OF CIVIL PROCEDURE. BEFORE THE AMENDMENT, THE SECOND SENTENCE OF RULE 1
SAID THE RULES, QUOTE, “SHOULD BE CONSTRUED
AND ADMINISTERED “TO SECURE THE JUST, SPEEDY,
AND INEXPENSIVE DETERMINATION OF EVERY ACTION AND PROCEEDING.” THE NEW RULE, AS AMENDED,
SAYS THE CIVIL RULES, QUOTE, “SHOULD BE CONSTRUED,
ADMINISTERED, “AND EMPLOYED BY THE COURT
AND THE PARTIES “TO SECURE THE JUST, SPEEDY,
AND INEXPENSIVE DETERMINATION OF EVERY ACTION AND PROCEEDING.” NOW, THIS MAY SEEM TO BE A FAIRLY MINOR CHANGE
IN WORDING, BUT ITS PURPOSE
IS QUITE IMPORTANT. RULE 1 NOW MAKES CLEAR THAT JUST AS THE COURT SHOULD CONSTRUE AND ADMINISTER
THE CIVIL RULES TO SECURE THE JUST, SPEEDY,
AND INEXPENSIVE DETERMINATION OF EVERY ACTION, THE PARTIES AND THE LAWYERS
SHARE THE RESPONSIBILITY TO EMPLOY THE RULES
IN THE SAME WAY. THE ADVISORY COMMITTEE NOTE
FOR THIS AMENDMENT OBSERVES THAT EFFECTIVE ADVOCACY
IS CONSISTENT WITH, AND INDEED DEPENDS ON, COOPERATIVE AND PROPORTIONAL USE
OF PROCEDURE. THE NOTE ALSO MAKES CLEAR THAT THE CHANGE DOES NOT CREATE
A NEW INDEPENDENT SOURCE FOR LITIGANTS TO SEEK SANCTIONS
AGAINST EACH OTHER. THAT, OF COURSE, WOULD BE– DEFEAT THE PURPOSE
OF THE AMENDMENT. THE COMMITTEE NOTE FURTHER
STATES THAT THIS CHANGE DOES NOT ABRIDGE THE SCOPE
OF ANY OTHER RULES ADDRESSING A LAWYER’S
RESPONSIBILITY TO VIGOROUSLY AND ZEALOUSLY
REPRESENT HIS OR HER CLIENT. AS YOU KNOW, THE IDEA
OF COOPERATION IS ALREADY FOUND
IN THE CIVIL RULES. IT IS FOUND IN PROVISIONS
SUCH AS RULE 26(f), WHICH REQUIRES THE PARTIES
TO MEET AND AGREE UPON A PROPOSED
LITIGATION SCHEDULE FOR THE CASE, AND ALSO IN RULE 26(c), WHICH REQUIRES THE PARTIES AND
THE LAWYERS TO MEET AND CONFER BEFORE BRINGING A DISCOVERY
DISPUTE TO THE COURT. THE AMENDMENT TO RULE 1 NOW WILL
GIVE MORE PROMINENCE TO THE PARTIES’ OBLIGATION TO MAKE THE CIVIL LITIGATION
PROCESS WORK EFFICIENTLY AND WILL PROVIDE A STANDARD
JUDGES CAN USE TO ENCOURAGE EFFICIENT
AND COOPERATIVE BEHAVIOR AMONG THE LITIGANTS
AND THE LAWYERS. WE HOPE YOU WILL USE RULE 1
TO ACHIEVE THIS OBJECTIVE. THANK YOU.

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