Why Businesses May Like the "Duke Rules Package" Part 3 of 4: A National "Rocket Docket?"

Earlier this year, I introduced a four-part series about the "Duke Rules Package" which includes drastic changes to the Federal Rules of Civil Procedure pending adoption by the Supreme Court. The so-called "Duke Rules Package" gets its name from the 2010 Federal Rules Advisory Committee meeting held at Duke University. The Federal Judicial Conference has approved the amendments, which are designed to streamline federal litigation while reducing costs. For these reasons, businesses should take note--these rules appear to be business-friendly and may influence how you manage litigation costs.

In this Part 3 of 4, I discuss how several of the rule changes could speed up litigation, particularly in its earliest stages. Faster cases often mean leaner attorneys' fees over the life of the case. Here in the Eastern District of Virginia--the "Rocket Docket"--we are used to seeing cases move quickly. Could some of the new rules result in a national "Rocket Docket?"

The first step in speeding up the case is getting defendants served faster. Currently, Rule 4(m) allows defendants to wait as long as 120 days to serve all defendants. Recognizing that many plaintiffs' counsel wait as long as the rules permit, the Committee sought to reduce the time from 120 to 60 days. After public comments, they compromised to a 90 day period. Failure to achieve timely service means that the court may dismiss the case for failure to prosecute. While such dismissals would not prevent a plaintiff from filing again (i.e. dismissal is without prejudice), a plaintiff that files on the last day of a statute of limitation will feel added pressure to get the case moving or risk a dismissal that cannot be undone.

The Committee has paired amendments to Rule 4(m) with related amendments to Rule 16, which governs pretrial scheduling conferences. Currently, Rule 16(b)(2) requires the court to schedule the conference within 120 days after service or 90 days after any defendant has appeared. The rule also allows scheduling conferences to occur through correspondence. Again seeking to speed up cases, the Committee has proposed to reduce the deadline for scheduling such a conference to 90 days from service or 60 days from a defendant's appearance. Also, perceiving delays caused by correspondence scheduling, the Committee proposes to mandate that such conferences occur by direct communication, such as in-person or by telephone.

On their own, proposed amendments to Rules 4 and 16 are unlikely to speed up cases much. If a court's docket is already congested by several years, shaving off one or two months will not significantly change the average time to trial. Plus, the rule does not dictate when any scheduling conference occurs, only that it be scheduled within a certain period. Moreover, both Rules 4 and 16 are still subject to discretionary enforcement by the court. Again, if the docket is already backed up, the court may not concern itself with strict adherence to these deadlines.

The Committee's more effective efforts to speed up a case derive from proposed Rule 26(d)(2). As proposed, Rule 26(d)(2) would allow any party to serve requests for production of documents as soon as 21 days after service of process, even if the Rule 26(f) conference (i.e. the discovery planning conference) has not yet occurred. As the Rule now stands, discovery cannot commence until the parties have a Rule 26(f) conference. Since the timing of the Rule 26(f) conference is currently tied to the timing of the Rule 16 conference, discovery cannot normally begin until the court has established a pretrial schedule.

Under proposed Rule 26(d)(2), any party may take unilateral steps to move the case forward by serving document requests during the initial pleading stage. These document requests are the impetus for electronic discovery, which sometimes becomes the tail that wags the dog in litigation. By moving this aspect of the case forward quickly, it may reduce the time from filing to trial by many months. And more importantly, one party cannot enjoy the advantage that delay sometimes creates--the party that wants to move the case along can.

Although it's impossible to know whether amendments to Rules 4, 16, and 26 will truly result in a national "Rocket Docket," the Committee's comments are explicit--"[t]he intent . . . is to get cases moving more quickly and shorten the overall length of litigation." Regardless of the outcome, the goal of speedier cases will remain. Courts, lawyers, and clients may view this as a trend towards rule amendments that speed up dockets everywhere. That is a policy of potential cost-savings for clients!

Please watch for the final part of this series, which will address the significance of the elimination of Rule 84, which permits the use of certain simple forms appended to the Federal Rules of Civil Procedure.