Rules/Litigation Subcommittee Meeting Minutes October 9, 2014 Teleconference

Transcription

1 Rules/Litigation Subcommittee Meeting Minutes October 9, 2014 Teleconference Members Present Jerry Abrams Thomas Allman Kim Brunner David Christensen Daryl Hecht Wallace Jefferson Hannah Lieberman Chase Rogers Tim Shay (for Dan Becker) Linda Simard Todd Smith Staff Present Brittany Kauffman Greg Mize Shelley Spacek Miller Others Present Bob Peck Richard Story I. Introduction Jerry Abrams called the meeting to order at 2:01 p.m. EDT. After completing a roll call of subcommittee members, he thanked everyone for their homework submissions and asked for any comments on the assignment. Subcommittee members largely had no comments or issues about the homework, however, there was a question about the extent to which our recommendations should be detailed (e.g. for time periods, exacting tolling standards). Jerry Abrams said this is something that he has also thought about and discussed with Greg Mize. Greg Mize recognized that an appropriate mindset might be more of a draft rule like those developed by the CFPB. Jerry Abrams noted that the draft rule should note that it is based on best thinking in the field and memorialize the process by which it was generated. II. Draft Rule-Pretrial and Trial Procedures Jerry Abrams then opened up the floor for subcommittee input regarding the tolling of time. Wallace Jefferson and Hannah Lieberman discussed the six month time frame noted in some responses and the appropriate marker at which to begin tolling. Linda Simard questioned the extent to which these rules should be hard and fast. It is possible there could be some level of in the alternative in the rules. Jerry Abrams mentioned that research indicates the benefit of setting some initial trial date as early as possible. Aside from certain circumstances, it is really good to set a trial date and not mess with it too much from there. Tom Allman noted that there should be some judicial discretion allowed regarding exceptions for moving trial dates. 1

2 Brittany Kauffman spoke about Colorado s Civil Access Pilot Project (CAPP) and how the recent evaluation showed that it is important to have a trial date with teeth set in the first instance. However, there can also be issues with a lack of flexibility regarding the trial date. Linda Simard noted the importance of creating a rule that has teeth, but also some degree of flexibility, and that the key is in the drafting. Chases Rogers highlighted the importance of implementation and the strong role local culture can play with rules. Dave Christensen reinforced the importance of a firm trial date, as everything else falls into place from there (everyone knows what has to be done under the timeline). The culture and level of dedication to a program is going to determine how steadfast they are on firm trial dates. Tim Shea noted that Utah is starting a pilot program based on Working Smarter Not Harder from IAALS. Utah s idea is to first set a firm deadline for dispositive motions. Those will be set in stone aside from emergency situations. There is also some assumption of early active case management by the judge in Utah s program. Jerry Abrams said his thought process is that there should be some court involvement to make sure pattern discovery or dispositive processes happen. Kim Brunner asked if there was a consensus regarding the cases that jump the rails and how they get there. Jerry Abrams referenced historical discussion on establishing a non-burdensome process by which to leave the pathway. There are also some types of cases that are presumptively in the pathway (and out) by their characteristics. Kim Brunner noted the importance of establishing what needs to be shown and to what level for removal from the pathway. Discovery Limits Jerry Abrams raised the question about disclosure and whether it should be mandatory. Linda Simard highlighted the importance of mandatory disclosure. However, the rules should allow some avenue by which to request additional information. For example, the FRCP only requires mandatory disclosure for positive information. Other types of information can be requested. She liked leaving some level of flexibility like this and the subcommittee generally agreed. Jerry Abrams noted that the consequences for not doing mandatory disclosure are also a piece of this. Tom Allman also mentioned the rules touching on important issues such as preservation, sanctions, and spoliation. Tim Shea pointed out that Utah has used mandatory disclosure for 20 years and there are sanctions if you don t disclose under their rules. Utah has also tried to limit the scope of discovery. Jerry Abrams summed up that mandatory disclosure should be part of the rule, with an opportunity to get more information. Chase Rogers asked about interrogatories, depositions, etc. that would allow the parties to get this information and the extent to which the rule should standardize discovery. Jerry Abrams mentioned Oregon s method of information disclosure regarding witnesses, who experts will be, copies of tangible evidence etc. Utah also has some specialized rules depending on the type of case. Jerry Abrams said that it is critical the subcommittee ensure some new vehicle for obtaining information if the subcommittee takes away the historical method of getting that information. 2

3 Maybe the way to do this is to do something less specific and broader in the rule. In a situation where there is mandatory disclosures, it might make sense to lay everything out, with some followup. Jerry Abrams said that there seems to be subcommittee consensus that mandatory disclosure with some form of follow-up is appropriate. Brittany Kauffman said that she does like the idea of pattern interrogatories or disclosures, even though this idea is not necessarily tied to a particular pathway. This might be something that the committee can note generally through broad recommendations. Wallace Jefferson said that he liked this idea, and also suggested including some background on mandatory disclosure and the whole intent for it in the first place. Jerry Abrams also noted the broad consensus on limiting depositions. However there is some divergence with respect to defining the limiting factor. Todd Smith recognized the issue of deposition abuse and mentioned the elimination of expert depositions as a possibility (already done in some jurisdictions). Jerry Abrams noted that the homework responses indicate that non-party discovery limits aren t necessarily a bad idea. There might also be a situation in which only depositions are considered at trial. Kim Brunner asked if there will be something in the report that will recognize the impact of local culture, etc. that might affect the overall implementation of the rule. Greg Mize noted the uniqueness of what the subcommittee is undertaking. He doesn t want the subcommittee to feel like they are bound by any precedent, however the committee should also consider what will be the most thought provoking for the plenary. Jerry Abrams, said that the goal is that there are sufficient strength and push in the rules that will get a case through the process efficiently and effectively. Overall there was consensus that limits on interrogatories, depositions, etc. are okay as long as they don t fundamentally limit the fairness of trial. Linda Simard mentioned the previous idea of having only depositions considered at trial. Fairness concerns are mitigated if the rules are clear about this. The attorney then knows their chance to cross examine happens at deposition and does it there. Tom Allman said that it is important to have something in the recommendations about proportionality from the onset and Jerry Abrams agreed with this. Dave Christensen noted that proportionality was implicit in his homework response and should be built into the rule the subcommittee is constructing. Daryl Hecht agreed that, to a great extent, suggestions for an ideal scheme conflate with the idea of proportionality. For any rule that limits the scope of discovery in non-expedited cases, it is his hope that the rule will make clear that any limits are always subject to a good cause showing regarding why not to limit. Jerry Abrams said that this good cause could also be the means/justification for leaving the pathway. There might be as much kicking it into another pathway as it is creating an exception. Going back to the notion of the overall discovery limitations, Jerry Abrams confirmed that everyone is comfortable with limits that are proportional to the needs of a particular type of case. 3

4 ADR Jerry Abrams then asked how people felt about mandating ADR as part of the expedited process. Daryl Hecht said that, from his review of the homework, the majority of people wanted only voluntary ADR. Wallace Jefferson gave some context regarding Texas adoption of the expedited action rule. At first they said there should be no ADR at all, but due to the response, they permitted ADR. However, ADR costs are limited to a certain amount to allow people real access to it. Jerry Abrams said the use of trial agreements are useful in his experience and asked for comment on that (to what extent should things be allowed to be only rule driven versus really tailored by the parties). Rick Story mentioned the potential tension between this and the vanishing jury trial. He thinks forcing everyone into ADR can be counterproductive. Kim Brunner mentioned the notion of extreme circumstances and forums tailored to address things like natural disasters. He didn t know if the group wanted to mention those forums as a potential to get things off the docket. Jerry Abrams said that this might be something that should be left to the parties. Trial Length Jerry Abrams asked about trial time limits and noted the varying responses from pilot projects. Wallace Jefferson provided some perspective on Texas experience and the instituted limits on trial time. Daryl Hecht also mentioned Iowa s limit on trial time. Jerry Abrams asked about the interplay between lack of dollar amount and time limit. Wallace Jefferson said he is in favor of some sort of time limit. The rules are built for a certain type of case that is supposed to be able to be completed more quickly with regards to both discovery and trial time. Todd Smith mentioned his experience in Illinois is that these types of cases inherently don t take that long. He doesn t know that he would be in favor of a time restriction because it is not an issue that he sees. Linda Simard mentioned that a time limit can be somewhat arbitrary and that these cases will naturally resolve themselves more quickly. Brittany Kauffman noted that one consideration regarding a time limit is that falling outside of the time limits might be an indication that the case shouldn t be in that pathway. Jerry Abrams mentioned that excluding arbitrary limits would also take away the don t have enough time argument. Jerry Abrams indicated that there is a lack of subcommittee consensus on this issue. Miscellaneous Daryl Hecht mentioned that a lot of the conversation is tightly connected to how you get in and out of the expedited track. As the subcommittee designs limits on discovery, length of trial, etc., it is weighing factors that affect access to the expedited track. If you set a maximum amount of controversy too high or too low (same for length of trial), you are going to influence how the litigants and attorneys will view the process and how readily they will accept a proposed new rule. The subcommittee has talked about entry and exit, and these questions are really interconnected. 4

5 Dave Christensen noted that the Michigan Supreme Court is considering an expedited process in which attorneys will hear trial. This really highlights issues around firm or soft trial date. There was also a brief conversation regarding the number of people on juries and the ability for final ruling conversation. Greg Mize noted the research on smaller v. larger juries (amount of award, deliberation, etc.). Researchers have shown that smaller juries result in more outlier type verdicts/awards. He will send this information out to the subcommittee. Jerry Abrams asked if there is anything out there that indicates whether or not there is something that jury size is more appropriate given a certain type of case and Greg Mize said he is not aware of anything. III. Next Steps Jerry Abrams said that for the next meeting, we will focus on building off of this discussion and further developing draft rules. IV. Adjournment There being no other business, the meeting was adjourned at 3:15 pm EDT. 5