The role of the federal judiciary’s advisory committees on the federal rules of practice and procedure —covering appellate, bankruptcy, civil and criminal procedure and evidence—is one of the most important and obscure parts of the federal courts.
These five advisory rules panels, along with an overall body called the Committee on Rules of Practice and Procedure (otherwise known as the Standing Committee) are charged with promulgating and amending the rules governing practice and procedure throughout the federal district and appellate court system. These committees report to the Judicial Conference of the United States, the chief policy-making body of the federal judiciary. Rarely covered by the media, the rules committees are significant in their impact on federal practice and the shape of justice in America.
Recognizing that important role, the Federal Bar Association over the past year began to more actively monitor the deliberations of the rules committees and establish a closer relationship with their personnel and work. This has occurred through the expert assistance of FBA member Ben Robinson (Orlando Chapter) who has attended key meetings of the rules committees on FBA’s behalf and reported back to the Association on important issues under consideration. Ben brings substantial experience to this endeavor, having previously served as Deputy Rules Officer and Counsel to the Standing Committee and its advisory committees. Like many FBA members, Ben is a litigator handling matters in a variety of jurisdictions, and resides and maintains his practice in central Florida.
Ben’s presence at rules committee meetings on behalf of FBA has provided valuable representation and timely intelligence on potential changes in the federal rules. These are matters of high value to every federal practitioner and litigation practice. The FBA’s Government Relations Committee and the Federal Litigation Section have assisted in coordinating Ben’s work and distilling and sharing the intelligence gleaned.
The Complex Process of Rules Changes
The process of adopting a federal rules change is lengthy, usually spanning several years and consisting of a multi-step process, beginning in one of the five advisory committees, extending through the Standing Committee, and ending with adoption of a final rules amendment by the Judicial Conference. The Supreme Court and Congress also play an important role in the process. Although the work of the rules advisory committees tends not to make major headlines, the committees operate in a relatively transparent fashion and meet openly twice a year at locations across the country. Typically, observers from a small number of legal organizations and law schools attend the meetings. During the past year, Ben Robinson has attended meetings of the Standing and Civil Rules Committees.
Rules Amendments Under Consideration
Several of the most important rules developments are currently occurring in the Civil Rules Committee:
- Potential amendment of Rule 30(b)(6) on depositions and the prevention of related abuse. The Civil Rules Committee is considering a rule amendment aimed at reducing the costs and acrimony frequently associated with practice under the rule. The potential amendment involves a meet-and confer requirement to help the parties avoid and resolve disagreements prior to a deposition.
- Potential changes to Multi-District Litigation (MDL) practice. A subcommittee has begun an extensive information-gathering effort to see whether to pursue rules for conducting centralized proceedings in MDL courts. That subcommittee will also consider whether problems with third-party litigation financing (TPLF) and “lead generators” are serious enough to justify rulemaking.
In addition, potential rules amendments before the Criminal Rules Committee include ones addressing discovery problems in complex criminal cases that involve “millions of pages of documents” and “gigabytes of information,” and discovery of expert witnesses.
FBA’s rules monitoring efforts will continue and widen in the year ahead to provide increasing value to FBA’s members and their practice. Stay tuned.