University of Cincinnati Law Review
For decades, the Civil Rules Advisory Committee (Advisory Committee) has garnered passage of amendments to the Federal Rules of Civil Procedure (FRCP) that have incrementally narrowed discovery in the service of the Advisory Committee's stated effort to combat the alleged "cost and delay" of civil litigation. More of the same are on their way to Congress now. In the classical David-and-Goliath lawsuit brought by an individual person against an institutional defendant, these pending amendments hurt David and help Goliath more than any previous round of amendments to the FRCP. The individual versus institution case, not coincidentally, is the most common lawsuit filed in federal district court today, and its prevalence has only grown over the past twenty-five years. Defense organizations drafted and tirelessly lobbied for most of the pending amendments, and they won.
This Article will begin in Part II by surveying the pending FRCP amendments, which will, in all likelihood, become effective on December 1, 2015. I divide my review into amendments that are not likely to have much practical effect (those addressed to "judicial management" and "cooperation"), amendments that disadvantage individual plaintiffs and advantage institutional defendants (most of the discovery amendments, the time to serve process, and the abrogation of the forms), and the one amendment that might slightly benefit plaintiffs (allowing earlier requests for documents). Part III provides an overview of government statistics on the federal courts and compares those actual statistics with the so-called "empirical studies" commissioned to support these amendments. Other than the study by the Federal Judicial Center, which the Advisory Committee largely downplayed and ignored, the flawed methodology of these "studies" begged the question of whether any of the judges on the Advisory Committee would have admitted them into evidence under the Daubert standard of Federal Rule of Evidence 702.17.
Part IV sketches the public reaction to the amendments, which was almost perfectly polarized between individual plaintiffs (against the amendments) and institutional defendants (for the amendments). The Advisory Committee's and Standing Committee's seeming indifference to the negative public reaction from plaintiffs' lawyers stems from their primary ideological orientation with the hard-right, as evidenced by many of the committee members' affiliation with the Federalist Society and the defense oriented Lawyers for Civil Justice (LCJ). At present, the Chief Justice has the power to appoint all the members of the federal rules committees. There is no explicit constitutional, statutory, or rules authority for this power; it results from a long-forgotten unofficial "compromise." The Article concludes by forecasting future amendments sought by defense and business interests that may be pushed through unless the mechanism for appointment of federal rules committee members is changed.
Patricia W. Hatamyar Moore, The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees, 83 U. Cin. L. Rev. 1083 (2015).