Federal court litigation, Chief Justice John Roberts suggested in his year-end report, can resemble the obsolete practice of dueling: "petty squabbling" that leaves "nothing but scars." And although the federal courts are "fundamentally sound," he observed, civil litigation has routinely become "too expensive, time-consuming, and contentious, inhibiting effective access to the courts."
As the Chief Justice admitted, he is hardly the first to lament these problems and to call for change. But he finds potential for that change in the 2015 amendments to the Federal Rules of Civil Procedure, highlighted in the report. Unlike some "modest," "technical," and "even persnickety" civil rules amendments, he wrote, the 2015 amendments are "different": they "provide a concrete opportunity for actually getting something done."
Chief Justice Roberts singled out e-discovery as a field particularly ripe for "getting something done" thanks to these amendments. He noted that Rules 16 and 26(f) now require parties to reach agreement as to preservation and discovery of ESI; further, he recognized that Rule 37(e) now specifies the consequences if a party fails to preserve ESI in the face of foreseeable litigation. These changes to the Rules, the Chief Justice concluded, require lawyers and judges to "recognize[e] the evolving role of information technology in virtually every detail of life."
Toward this recognition, much has been said about attempts in the 2015 civil rules amendments to codify "proportionality" as a first principle of discovery, and "cooperation" as the North Star guiding relations between counsel. But the Chief Justice, citing Rule 1 of the Federal Rules of Civil Procedure, identified a third element anchoring the 2015 amendments—"the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation," beginning with the Rule 16 conference. (Emphasis added.)
In Chief Justice Roberts' view, lawyers must "work together, and with the court." Judges, in turn, will need to "guide decisions" on the scope of discovery. "[A] well-timed scowl from a trial judge," for example, "can go a long way in moving things along crisply." Partnering together, rather than dueling one another, lawyers and judges can achieve the "just, speedy, and inexpensive" outcomes envisioned by Rule 1. The potential for that achievement, the Chief Justice commented, makes the 2015 amendments to the Federal Rules of Civil Procedure a "big deal." But realizing the achievement, he cautioned, will occur only if the "entire legal community"—including the bench, bar, and legal academy—"step up to the challenge." So far, the Chief Justice concluded, "we are off to a good start."
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