DRI Advocates Federal Rules Reform

By Guest Blogger, Henry M. Sneath

In an ongoing effort to strengthen the hand of our defense lawyer members, DRI and its partners The LCJ (Lawyers for Civil Justice - in Washington, D.C.), FDCC and IADC have submitted and presented a white paper entitled: "FRCP White Paper on Reshaping the Rules of Civil Procedure for the 21st Century: The Need for Clear, Concise, and Meaningful Amendments to Key Civil Rules of Procedure." This paper was presented last week to the 2010 Duke University Law School Litigation Review Conference, by DRI member and LCJ representative Bruce Parker of the Venable firm in Baltimore. CLICK HERE to downlaod the paper.

The White Paper advocates to the Federal Judicial Conference Rules Committee regarding rule reform and the need to comprehensively examine and amend the Federal Rules of Civil Procedure. Over 35 Defense and Commercial lawyers participated in drafting this paper which addresses the ever escalating cost and complexity of litigation, generally, and specifically in the era of massive e-discovery requirements. The paper took some cues from the recent Twombly and Iqbal cases to argue, inter alia, for an examination of the failures of "notice" pleading and to implement:

1. A realistic pleading standard as set forth in Twombly and Iqbal and to include more than mere notice pleading;
2. Limitations on discovery to more closely tie these efforts to the actual claims and defenses in the action;
3. Amendment of the rules to permit spoliation sanctions only where willful conduct for the purpose of depriving another party of the use of the information results in actual prejudice to the other party and
4. Cost allocation - such that exorbitant discovery costs require specific cost allocation provisions that tax each party to pay the costs of the discovery it seeks.

While some lawyers, mainly in the plaintiff's bar, are calling simply for more Judicial oversight of pleading and discovery, DRI firmly believes that meaningful and comprehensive rule reform is the only viable long term solution. Judicial oversight is also needed, but without strong rule reform, there is likely to be a continuation of the abuse and runaway cost that bears no proportionality to the size and scope of the litigation. DRI is continually committed to providing these quiet, but meaningful services to its members and their clients.