Civil Procedure before the FRCP
The Federal Rules of Civil Procedure (FRCP) took effect in 1938, four years after the passage of the Rules Enabling Act, which empowered the Supreme Court of the United States to make uniform procedural rules for civil actions in the U.S. district courts. The decades-long debate over the legislation that ultimately became the Act resulted from a fundamental disagreement about the appropriate source of federal rulemaking power. Advocates of reform believed that each federal trial court should follow identical procedures set out by the Supreme Court, while their opponents believed that federal procedures should continue to conform to those of the states in which they sat, as they had since 1789.
Section 34 of the Judiciary Act of 1789, also known as the Rules of Decision Act, provided that state laws would serve as the rules of decision in federal civil cases not governed by the Constitution, a federal statute, or a treaty. A few days after passing the Judiciary Act, Congress enacted the first Process Act, which mandated that federal courts follow the procedures of the highest courts of the states in which they sat as those procedures existed at the time. The Process Act established “static conformity”: even if the state courts changed their procedures, the federal courts would remain bound to the rules as they had existed in 1789. From the outset, therefore, civil procedure differed from one federal court to another.
The original Process Act was intended to be temporary, but in 1792 Congress provided in a second Process Act that the federal courts should continue to follow the procedures of the state courts as of 1789. The second Process Act was more flexible, however. It introduced a clause permitting the federal courts to make any departures from state procedural rules they deemed expedient. Static conformity was thereby transformed from a mandate into a general recommendation. Some federal courts used this newfound discretion to adopt more recent state procedural rules. The Act also authorized the Supreme Court to make procedural rules for the federal courts—a power reaffirmed by an 1842 statute—but the Court did not exercise this authority before it was repealed in 1872.
In the mid-nineteenth century, a wave of change began to sweep over many state-court systems. Attorney David Dudley Field of New York drafted a set of court procedural rules intended to be simpler than traditional common-law procedures. Enacted by the state of New York in 1848, the Field Code abolished the distinction between law (ordinary civil suits for monetary damages) and equity (suits for nonmonetary relief, such as injunctions, to which traditional legal rules did not apply), establishing a single set of procedures for both. Code pleading proved influential, and half the states in the country had adopted the Field Code, with some variations, by 1900. While many legislators liked the new procedural codes, judges frequently did not. The justices of the Supreme Court, long accustomed to common-law pleading, expressed their displeasure with the unfamiliar rules. Federal trial judges, having the ability to implement their states’ codes in their own courts under the Process Act of 1792, sometimes did so but in other instances continued to adhere to old common-law procedures. As code pleading spread, the differences in procedure between federal courts grew even wider.
In 1872, Congress tried to bring some order to what had become a chaotic state of affairs. The Conformity Act of that year instructed federal courts that their procedures should “conform, as near as may be” to the state-court procedures “existing at the time.” Dynamic conformity became the order of the day. Nevertheless, the continued link between federal and state procedures ensured that procedure in civil actions would still vary greatly from one federal court to another. Confusion amongst lawyers who practiced in the federal courts of more than one state was widespread. At its annual meeting in 1895, the American Bar Association (ABA) adopted a resolution to appoint a committee for the purpose of studying “the movement now in progress to further a uniform system of legal procedure.” The Committee on Uniformity of Procedure and Comparative Law issued a report the following year that was critical of the requirement of conformity to state procedure. “The lawyer should not be required to spend his time, nor the client his money, in presenting to the courts questions of practice having no bearing on the merits, and tending only to delay and injustice,” the report proclaimed. From that point on, the ABA took the lead in advocating for a uniform system of federal procedure.
Little happened in the decade following the report of the Committee on Uniformity, but in 1906, Dean Roscoe Pound of the University of Nebraska College of Law sparked a new era of judicial reform by delivering a speech titled “The Causes of Popular Dissatisfaction with the Administration of Justice” at the ABA’s annual convention. “[O]ur system of courts,” he declared, “is archaic and our procedure behind the times.” Pound lamented “the injustice of deciding cases upon points of practice, which are the mere etiquette of justice.” The speech led to the immediate creation of the ABA’s Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation, which endorsed the notion of a uniform federal code of procedure in 1910. The following year, the ABA created the Committee on Uniform Judicial Procedure at the suggestion of Virginia lawyer Thomas W. Shelton, who became its chair and the chief advocate for procedural uniformity. In 1912, the committee joined forces with House Judiciary Committee chair Henry Clayton of Alabama in attempting to get a federal uniform procedure bill passed. The Clayton Bill provided that the Supreme Court would have the power “generally to regulate and prescribe by rule the forms for the entire pleading, practice and procedure to be used in all actions, motions, and proceedings at law of whatever nature by the district courts of the United States.” Despite the support of President and future Supreme Court Chief Justice William H. Taft—who in 1910 had called on Congress to pass such a bill—and Attorney General James McReynolds (soon to be a member of the Supreme Court), the bill failed to pass.
Legislative debates continued throughout the 1910s and 1920s, during which proponents of a federal code of civil procedure argued that procedure under the Conformity Act of 1872 had become unduly complicated. As one Senate report put it, pervasive confusion had made “the practice of law in the district courts of the United States the most difficult and uncertain of the whole civilized world.” Lawyers and judges echoed Pound’s frustration that many cases in the federal courts turned on procedure rather than on substantive legal doctrine. Constant procedural maneuvering resulted in protracted litigation, high legal fees, and the erosion of public confidence in the federal courts as institutions capable of resolving disputes in a fair and timely manner. Lawyers who practiced in multiple states—a group that became more numerous as interstate commerce grew—found it especially difficult to learn different procedures for every federal court in which they appeared. A national economy, argued Shelton and his allies, required a nationally applicable set of legal procedures.
Moreover, the hope that the Conformity Act would harmonize federal and state procedure within each state had not been realized. Federal courts had often relied upon the flexibility built into the Act to make partial deviations from state procedures. These deviations were especially prevalent in the states that had adopted code pleading. State legislatures amended procedural codes so frequently that it was difficult for federal courts attempting to implement those codes to remain in conformity, resulting in a lack of uniformity not only between federal courts in different states, but also between state and federal courts in the same state. Rules promulgated by the Supreme Court, advocates claimed, would establish uniformity while simplifying procedure. The ABA and the many state bar associations in agreement with it were not alone in advocating this course. As the 1914 House Judiciary Committee report on the Clayton Bill noted, the proposal for uniform federal procedure enjoyed widespread support, having been endorsed by law professors, state governors, the U.S. Chamber of Commerce, and a panoply of other civic and commercial associations.
The biggest—and perhaps only—obstacle to the passage of a statute conferring civil rulemaking authority on the Supreme Court was the Senate Judiciary Committee, and Senator Thomas Walsh of Montana in particular. After holding hearings on the Clayton Bill in 1915, at which Walsh sparred with Shelton, the committee failed to report the bill. When Senator George Sutherland of Utah (another future justice of the Supreme Court) introduced similar legislation in 1916, the committee issued a report in 1917 favoring its passage. One senator switched his vote after the report had been drafted, however, with the result that the majority of the committee signed the “views of the minority” Walsh submitted in opposition to the bill. The committee held further hearings on the Sutherland Bill in 1922, but once again did not report the legislation.
In 1924, Senate Judiciary Committee chair Albert Cummins of Iowa, who had previously opposed the legislation, introduced a revised uniform procedure bill after corresponding with Shelton. The Cummins Bill contained the caveat that the “rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant,” as well as a provision for the rules to take effect six months after being submitted to Congress absent congressional action to block them. Upon taking effect, the new rules would supersede any inconsistent rules or statutory provisions. Cummins included an additional section, drafted by Chief Justice Taft, allowing the Supreme Court to merge procedures for law and equity as the Field Code and its progeny had done in some states. Taft had proposed the merger two years earlier, first mentioning it in a speech to the Chicago Bar Association followed by a more formal proposal to the ABA.
Once again, Walsh fought tooth and nail to prevent the bill’s passage. After the committee reported the bill favorably, Walsh asked for it to be recommitted on the basis that he had been absent when it was considered. Once recommitted, Walsh campaigned against it successfully, and it was not reported. Cummins pressed on, and his bill finally received a favorable committee report in 1926. In December 1926, however, several months after Cummins’s death, Walsh objected to a vote on the floor of the Senate, and the bill was passed over. The committee took up the Cummins Bill yet again in 1928, after its membership had changed, and this time it reported the legislation unfavorably. At the close of the 1920s, the situation looked bleak for proponents of a uniform federal procedure bill.
Walsh’s objections to the various bills were largely based on his belief that uniform federal procedure would help elite lawyers who practiced in many different states, but would hurt the vast majority of lawyers, who did all of their business in a single state. As he put it, “I am for the one hundred who stay at home as against the one who goes abroad.” Should the Conformity Act be repealed, local lawyers would have to learn two entirely separate systems of procedure to practice in both state and federal courts, a task especially burdensome to attorneys who had been practicing for many years. Although federal courts did not have to follow state-court procedures to the letter, Walsh believed that existing variations from those rules were mostly inconsequential. Walsh also attacked the assumption that rules promulgated by the Supreme Court would be clear and simple by pointing to the experience of code-pleading states like New York. In many cases, he argued, the codes had caused as much or even more confusion and uncertainty as had the common law, and frequent amendment by state legislatures only exacerbated the problem. Why, asked Walsh, would a federal code of civil procedure produce different results? Walsh also believed uniformity at the federal level was inappropriate in a nation as vast as the United States, where regional legal cultures had developed differently based on local conditions. Lastly, Walsh and his supporters raised doubt about the constitutionality of Congress delegating rulemaking authority to the Supreme Court.
Politics and class conflict helped shape the debate over federal court procedure. The ABA of the late nineteenth and early twentieth century was known as a conservative organization that opposed many Progressive policy initiatives such as bans on child labor and minimum wage laws. Its members were elite attorneys, many of whom represented large corporations. In seeking a federal code of civil procedure, the organization was motivated in part by a desire to strengthen the national judiciary by shifting rulemaking power from Congress to the Supreme Court. Progressives like Walsh believed, with some justification, that the ABA was also attempting to privilege its elite members, who were more likely to practice in multiple states, over small-town lawyers rooted in a single place. In seeking to simplify procedure, the ABA was likely motivated as well by the emergence in the 1890s of a more specialized plaintiffs’ bar, consisting of personal injury lawyers who were learning to use complex procedures to the detriment of corporate defendants.
When Shelton stepped down as chair of the ABA’s Committee on Uniform Practice and Procedure in 1930, the ABA’s campaign for uniform federal procedural rules came to a close. U.S. District Judge George McClintic of West Virginia, an opponent of uniform federal rules, soon took over the committee, and in 1933 he allowed it to lapse. The same year, President-elect Franklin D. Roosevelt chose Walsh to be Attorney General, a development many believed sounded the death knell for the decades-long reform effort.
Fate intervened to change the trajectory of events, however. Walsh died unexpectedly of a heart attack on the way to Washington for Roosevelt’s inauguration. As a result, Homer Cummings, who supported legislation for uniform federal rules, was appointed to the post. Cummings began immediately to work on reviving the proposal. The dormancy of the ABA’s campaign, combined with the death of Walsh, gave Cummings the political space to rebrand the idea as a Progressive judicial reform rather than a conservative goal of the ABA and its allies. Having won Roosevelt’s support for the measure, Cummings urged that a new bill, virtually identical to the ABA’s last proposal, be introduced in Congress. With a favorable change in Senate Judiciary Committee membership, the bill sailed through both houses of Congress with surprising speed and was enacted as the Rules Enabling Act of 1934.
Drafting the FRCP
The Rules Enabling Act did not specify the scope of the prospective rules or, indeed, require the Supreme Court to craft any rules at all. Some observers speculated that the Court would only adopt standards for common-law procedure, avoiding the task of merging that body of law with equity. In a May 1935 speech, however, Chief Justice Charles Evans Hughes clarified that the rules would apply to both law and equity, making use of the merger provision his predecessor had introduced. Hughes reasoned that “separation has long been abolished in most states . . . [, and t]hose who have practiced under . . . a unified system would not entertain for a moment the suggestion that they should go back to the old separate methods.” Rule 2 ultimately reflected this principle, dictating that “there shall be one form of action to be known as ‘civil action.’”
Shortly after Hughes delivered his speech, the Court began soliciting advice from the Conference of Senior Circuit Judges (now the Judicial Conference of the United States or JCUS, the national policy-making body for the federal courts), which organized committees in each judicial district to evaluate proposed rules and make recommendations. The Court also appointed an Advisory Committee of lawyers, scholars, and judges to draft the rules. Hughes laid out a broad remit for the committee. “[T]he goal we seek,” he emphasized, “is a simplified practice which will strip procedure of unnecessary forms, technicalities and distinctions, and permit the advance of causes to the decision of their merits with a minimum of procedural encumbrances.”
The Court appointed former Attorney General William Mitchell as the committee’s chair. Yale Law School dean Charles Clark served as the committee’s reporter. Most observers regarded Clark’s role as vital in setting the form, scope, and philosophy of the rules. Throughout his tenure on the committee, Clark emphasized simplicity and a desire to resolve cases on their substantive merits, rather than on procedural niceties.
An important component of this second precept was the introduction of extensive pretrial discovery into federal civil litigation. From the outset of the drafting process, Clark and other members of the Advisory Committee publicly stressed their determination to avoid deciding cases based on surprises arising from a lack of disclosure. Many states had previously employed discovery devices like depositions and requests for documents. Few, if any, jurisdictions used as comprehensive a discovery system as the Advisory Committee adopted for the FRCP, however. Live, transcribed deposition testimony had been a relative rarity prior to the FRCP, for example, yet the draft rules permitted parties to depose all witnesses in civil cases. While some observers worried that these innovations would drive up the cost of litigation or lead to “fishing expeditions,” Clark and others insisted that broad discovery procedures were necessary to facilitate a search for the truth and avoid cases turning into battles over technicalities.
To avoid that result, the committee strove to simplify the rules as far as practicable. Part of this effort was achieved through the merger of law and equity, since practitioners no longer had to master two sets of pleading forms. Equity Rule 22 had attempted to remedy some of the perils of pleading in a bifurcated legal system by allowing the transfer of cases between equitable and legal forms. Even so, many experts argued that continued reliance on a divided system created needless inefficiencies. The greater part of the simplification agenda, however, lay in reducing the sheer number of pleading types. Thus, for example, Rule 12 anticipated a streamlined procedural vehicle for preliminary objections to the plaintiff’s complaint: the motion to dismiss. The only formal responsive pleadings anticipated by the rules were the answer to the complaint and replies to motions. These documents supplanted a large set of pleadings that often placed great weight on seemingly picayune distinctions or required parties to posit elaborate legal fictions (hypothetical scenarios courts accepted as true for procedural convenience). Similarly, the draft rules permitted plaintiffs to combine an unlimited number of actions into a single complaint. This system was more liberal than those employed by many states, which restricted, by number or type, the claims parties could join in each suit.
The Advisory Committee completed its first preliminary draft of the new rules in May 1936. This preliminary draft was then circulated to members of the bench and bar, who offered comments and criticisms. Perhaps the most important venue for this feedback was an “Open Forum” of the ABA, held at the association’s 1936 annual conference in Boston. The response of the organized bar at that, and most other meetings, was overwhelmingly positive.
Not everyone was happy with the draft rules, however. John Wigmore, the former dean of Northwestern Law School and one of the preeminent evidence scholars in twentieth-century America, issued a strongly worded critique of the proposal. Wigmore argued that, for all the talk of simplification, the rules were still drafted in an archaic manner that left little room for additions and revisions and gathered disparate rules into paragraph-long lists. He claimed that, far from unifying the body of federal civil procedure, the rules repeatedly relied on ambient statutory law to fill in gaps. Finally, and perhaps most tellingly, Wigmore lamented that the draft rules largely neglected evidentiary issues, giving little guidance on some of the most important questions likely to arise in civil trials. Wigmore’s final objection was eventually met with the adoption of the Federal Rules of Evidence (FRE) in 1973. A restyling in 2007 adopted some of the approach Wigmore advocated in an attempt to make the rules more comprehensible and change their paragraph structure and organization.
Based on input from the bench and bar on the preliminary draft, the Committee made several relatively minor changes to the rules before producing a second preliminary draft in April 1937 for further comment. For example, the rule on summary judgment moved from the title dealing with discovery to the title dedicated to judgments. The draft resulting from these changes was then submitted to the Supreme Court for approval. The Court ordered the adoption of the rules on December 20, 1937. Justice Louis Brandeis dissented from the approval of the rules but did not issue a formal explanation of his dissent. According to Brandeis’s former clerk and friend Paul Freund, Brandeis feared that the rules would be unduly rigid and needlessly centralize a process that should have been localized and subject to experimentation.
The rules were to take effect on the later of three months after the adjournment of the second session of Congress or September 1, 1938. In the main, Congressional leaders appear to have supported, or at least acquiesced to, the new rules. However, influential Senator William King of Utah attempted to pass a resolution postponing their adoption. At a Senate Judiciary Committee hearing on the proposed resolution, King indicated that he felt Congress owed a duty to properly scrutinize and study such an important and novel set of procedural rules. He and some other members of the committee expressed concerns that, by following the process laid out in the Rules Enabling Act without such a delay, Congress would cede too much lawmaking authority to the judicial branch.
Attorneys General Cummings and Mitchell, Advisory Committee member Edgar Tolman, and the presidents of the American Bar Association and Association of American Law Schools testified at the hearing in favor of the rules. Each of the witnesses defended the rigor and thoughtfulness with which the rules had been conceived and drafted. They also noted that the Rules Enabling Act was predicated on the principle that the courts were fundamentally the best organs for developing sound judicial procedure. Tolman defended specific rules against suggestions that they would impact the substantive rights of parties in violation of the Rules Enabling Act. Representative Hatton Summers from Texas gave brief impromptu remarks against allowing the rules to go into effect without further study. The resolution failed to gain further political traction, and the rules went into effect on September 16, 1938.
The FRCP as Adopted
As adopted, the FRCP consisted of eighty-eight rules arranged into ten titles. The first of these titles dealt with the scope of the rules. Rule 1 implicitly stated the governing philosophy of the rules as a whole in requiring that courts interpret the FRCP to avoid undue cost, delay, or injustice. Rule 2 recognized the merger of law and equity.
The second title dealt with the filing and service processes. Rule 3 stated that civil actions must commence with the filing of a complaint. Rules 4 and 5 laid out the process for serving the complaint and the summons (the document giving the defendant notice of the suit). Rule 6 set forth the standards for computing time limits for the filing of each of the required documents. The rule excluded holidays and Sundays from the calculation of the final day of a time cycle. For time frames of less than a week, holidays and weekends were excluded from the computation entirely. This system reflected courts’ and attorneys’ reliance on conventional mail services. The timing rules were later amended to reflect the widespread availability of electronic filing and communication mechanisms.
Title III governed the form of pleadings and motions under the FRCP. Rule 8(a) required that the complaint contain “short and plain” statements articulating the basis for the court’s jurisdiction and the nature of the plaintiff’s claim. This language was generally understood to adopt a “notice pleading” standard, under which the purpose of the complaint was to provide the defendant with adequate notice of the plaintiff’s claims, rather than to recite a detailed account of every occurrence giving rise to the suit. Rule 9 provided the only exceptions to this standard, requiring that fraud and mistake must be pleaded “with particularity.”
For the most part, however, Title III was more forgiving and flexible than many state procedural regimes. Rule 8(e), for example, adopted a liberal policy in permitting parties to adopt alternative claims or demands, even if those claims could be contradictory. This standard relieved parties of technical consistency requirements in many states and avoided forcing parties to choose between potential legal theories and remedies at the outset of litigation.
Rule 11 required that either an attorney of record or an unrepresented party must sign every pleading. The attorney’s signature served as a certification that the attorney had read the pleading, had a good-faith belief that it was supported by law, and had not filed it for the purposes of delay. The rule empowered the court to penalize willful violations of these standards and the inclusion of any “scandalous or indecent matter” in court filings. This rule was subsequently amended to strengthen the court’s ability to impose sanctions for frivolous filings.
Rule 12 laid out the form of several important motions to the court. Perhaps most significant among these was Rule 12(b)(6)’s motion to dismiss “for failure to state a claim upon which relief may be granted.” This motion replaced many of the traditional pleading mechanisms for the dismissal of cases at a preliminary stage. It required a moving party to show that even if the plaintiff could prove all the allegations in the complaint, there would be no legal grounds on which the plaintiff could prevail at trial. In cases where the moving party was unable to meet this bar, the implicit policy of the rules was to allow the parties to collect evidence through discovery that would facilitate a factual determination.
Rule 13 laid out the standards for counterclaims (suits by the defendant against the plaintiff) and crossclaims (suits between sets of plaintiffs or defendants). The rules required parties to make these claims if they arose from the same set of facts as the original complaint and permitted them to make such claims under most other circumstances. Similarly, Rule 14 contemplated a liberal standard for bringing third parties into suits (as, for example, when a defendant claimed another person owed the defendant an indemnity).
Rule 16 provided for a pretrial conference between the judge and the attorneys to streamline discovery, identify any special problems, and ensure the case moved to trial or settlement expeditiously. This process mirrored recent innovations by courts in Boston, Detroit, and Cleveland designed to limit cost and delay in litigation. The system-wide use of pretrial conferences grew in subsequent decades and became a key component of judicial case management in the federal system.
Title IV primarily focused on the parties to the suit. Rules 18–22 outlined the rules for joinder and interpleader, processes by which outside parties or claims could be added to suits. Rule 23 governed the use of class actions, suits in which a manageable number of plaintiffs sue in the name of a much larger class of similarly situated individuals. Although the use of federal class actions predated the rules by several decades, the rules came at a time when the modern form of the class action was becoming an important vehicle for vindicating the rights of consumers and citizens. Rule 23(b) also provided standards for the use of shareholder derivative suits, a mechanism by which corporate shareholders could sue to protect the interests of the corporation against the actions of corporate officers. Rule 24 outlined the process for intervention, by which outside parties could enter suits on their own initiative to preserve rights involved in the litigation.
Title V governed discovery, arguably one of the rules’ most extensive innovations. Indeed, one of the rules’ drafters claimed that the discovery provisions were the only part of the FRCP to which “the word ‘revolutionary’ can be correctly applied.” Rules 26–32 provided a generally liberal set of standards for depositions, permitting parties to use recorded testimony “for any purpose” at trial, to take depositions before a suit was filed, and to replace live testimony at court with deposition transcripts if the witness was dead, unavailable, or distant from the court. Rules 33 and 36 aimed to streamline the fact-finding process by permitting parties to submit interrogatories (questions) and requests for admissions to each other. Rule 34 similarly permitted the parties to request the production of documents pertinent to the case. One of the more contentious elements of the new discovery standards, Rule 35, permitted the court to order a physical or mental examination where a person’s condition was at issue in the case. Rule 37 provided a detailed set of penalties for failure to comply with discovery rules.
Title VI covered trial procedure. Arguably the two most important provisions in this title implicated the right to a jury trial and federal evidence standards. The jury trial issue was complicated by the merger of law and equity. The Seventh Amendment’s right to a jury trial only applied to “suits at common law, where the value in controversy shall exceed twenty dollars.” Equity matters had long been conducted by a judge sitting without a jury. Rule 39 did not specifically allude to a continued division between equity and common-law practice in this regard, but incorporated the Seventh Amendment, providing that parties could demand a jury trial in any case in which that amendment gave them the right to a jury. In doing so, the FRCP reversed the default position for common-law jury trials. Most jurisdictions had previously presumed the need for a jury unless the parties stipulated to a bench trial; under FRCP 39(d), the parties had to make a timely demand for a jury or were deemed to have waived their right. Opinion seemed to vary on the importance of this shift. Some popular reports suggested either that this change would make jury trials harder to obtain or provide greater efficiency than the existing system. Many legal experts suggested that the requirement of a jury demand was fairly minimal and would become common course for lawyers.
Although the final version of the rules did not answer Wigmore’s call for comprehensive guidance on the evidentiary standards governing the trial, Rule 43 offered a broad guideline favoring the admissibility of evidence. FRCP 43(a) stated that any evidence admissible under state law, federal statutes, or federal common-law principles should be admitted. Where those bodies of law differed as to the admissibility of evidence, the same rule dictated that “the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any [applicable bodies of law].” In the aftermath of the FRCP’s adoption, several commentators and a few lower federal courts continued to lament the absence of a clear and uniform set of evidentiary rules, a complaint that eventually led to the adoption of the FRE in 1973.
Title VII provided standards for judgments. Rule 55 set out the availability of default judgment (judgment based on a party’s failure to litigate a case) and permitted the court to set aside defaults “[f]or good cause shown.” Rule 56 outlined the process for summary judgment, a key feature of the new rules. This rule permitted any party to move to end the case where there were no material issues of fact (such as the credibility of conflicting witnesses) and the moving party was entitled to judgment as a matter of law. The rule was designed to avoid unnecessary trials in civil cases in which one party was clearly entitled to prevail, particularly after the parties had an opportunity for discovery. Rule 57 permitted parties to seek to set aside judgments based on fraud, mistake, accident, surprise, or inadvertence. Rule 58 incorporated by reference a recently passed federal statute authorizing federal courts to issue declaratory judgments, a new form of relief by which courts could issue a declaration of the legal rights of parties. Rule 61 provided that harmless errors, those in which the mistake was not “inconsistent with substantial justice,” would not form the basis for setting aside the court’s judgment.
Rules 62–66 dealt with appeals. Rule 62 governed direct appeals to the Supreme Court in cases—such as those challenging the facial constitutionality of a state statute—in which federal statutes permitted such an appeal. Rule 63 provided guidelines for the more common scenario of an appeal to a U.S. court of appeals. In each instance, the rules governing appeals focused on the district court’s procedure for initiating the appellate process, such as the process for bonds securing appeals, rather than on the process to be employed by the appellate court itself. The Federal Rules of Appellate procedure, adopted in 1968, eventually supplied procedural rules for appellate courts.
Title VIII dictated standards for remedies and special proceedings. Perhaps the most sensitive aspect of this title was Rule 70, which laid out the availability and scope of injunctions. The widespread use of federal injunctions—orders from courts of equity that a party refrain from certain conduct—became politically controversial in the late nineteenth and early twentieth centuries, particularly in the context of labor disputes. Several federal courts, for example, had ordered the end of railroad strikes and punished union leaders who defied those orders. During Senate hearings on a potential delay of the FRCP going into effect, some lawmakers pointed to the rule’s treatment of the sensitive question of injunctions as requiring further study. Supporters of the rules, however, countered that Rule 70 and related provisions did not enhance the courts’ injunction power and had the support of major labor groups.
Title IX dealt with a number of ministerial matters. Rule 79, for example, stated that district courts were always deemed “open” for the purposes of filing, and set forth some parameters for the authority of clerks of court. Rule 81 enumerated certain documents, including the court’s docket and calendar, to be kept by the clerk. And Rule 82 governed the availability and use of stenographers’ reports.
Title X contained several general provisions, primarily dealing with the scope and effect of the rules as a whole. Under Rule 83, for example, the FRCP did not apply to admiralty, bankruptcy, or copyright proceedings. The FRCP initially applied to all federal habeas corpus proceedings. This part of Rule 83 (later renumbered FRCP 81) was amended to reflect the promulgation of rules for two specific sets of federal habeas proceedings following 1977 amendments to the statutes governing those proceedings. Finally, an appendix following the rules provided a set of forms for new filings, designed to standardize the pleading and motion processes.
Reception of the FRCP
In the immediate aftermath of their adoption, the rules proved popular with the majority of American lawyers, particularly members of the organized bar. In calling for the extension of rulemaking power to criminal cases, for example, Attorney General Cummings told Congress that “lawyers are acclaiming the new rules of civil procedure . . . as the most notable procedural reform which has been made in this country for more than a half a century.” Law schools and bar associations across the country hosted numerous workshops and seminars throughout 1938 and 1939 to get practicing lawyers up to speed on the changes in civil procedure.
Writing in 1940, Charles Clark characterized the rules’ early success as “literally phenomenal.” “The ease with which both attorneys and judges have adjusted themselves to the changes and the zeal with which they have taken advantage of the new developments surpass anything which has happened before,” he continued. Pointing out that most major reforms were met with at least some resistance, Clark asserted that the FRCP had elicited “hardly a breath of dissent.” The Advisory Committee backed up Clark’s claim when it considered amendments to the rules a few years later. “Apparently from no source has come a suggestion that the Rules should be abolished,” the committee’s report stated. “That procedure should be regulated by rule of court has come to be generally accepted.” The committee also emphasized that none of the amendments under consideration departed in principle from the existing rules.
Clark and the members of the Advisory Committee might have been forgiven if they lacked perfect objectivity, but their comments were echoed by the many lawyers and judges who praised the simplicity and flexibility of the new rules. Some of the praise was effusive, such as that from Judge J. Edward Lumbard of the Second Circuit, who wrote in 1964 that “the adoption of the federal rules was the single greatest step forward ever taken by the legal profession in this country.” An Oklahoma attorney went further, calling the rules “one of the greatest contributions to the free and unhampered administration of law and justice ever struck off by any group of men since the dawn of civilized law.” W. Calvin Chesnut, a judge of the U.S. District Court for the District of Maryland, declared, “I have yet to note an instance in which [the rules] have been found lacking.”
In 1953, looking back upon the first fifteen years of the FRCP, Judge Alexander Holtzoff of the U.S. District Court for the District of Columbia explained why they had been so effective. The overriding philosophy of the rules, he wrote, was to do away with technicalities to the extent possible and ensure that cases were decided upon their merits in a fast and efficient manner. These goals had been achieved by merging law and equity into a single civil action, simplifying pleading requirements, removing technical errors in pleading as grounds for the dismissal of a case, allowing plaintiffs to join into one case multiple claims against a defendant, and perhaps most importantly, broadening the discovery process—particularly through the use of depositions—to curtail the element of surprise and ensure that all parties entered the litigation with an understanding of their own case and that of their adversary. In all, Holtzoff found the FRCP to be “competently and brilliantly used, liberally construed, their clarity, succinctness and simplicity vindicated, their text adopted in whole or in part by many of the States, and achieving their mission beyond the most buoyant expectations of the Committee who framed them.”
As Holtzoff mentioned, acceptance of the FRCP by the states was widespread and a strong indicator of the rules’ positive reception. By 1959, more than half of the states had adopted the rules in whole or in substantial part. In 1943, Alabama State Bar president Jacob Walker wrote that it was “unreasonable and absurd” for the lawyers of his state to be required to use two completely different sets of procedural rules for the state and federal courts. Practice under the Conformity Act had been easy and efficient in his view. Recognizing that “Congress is obviously not going to adopt the Alabama practice for the nation,” however, Walker saw state adoption of the FRCP as the only reasonable course. Although he believed the change would cause some temporary inconvenience to lawyers used to practicing under the Alabama rules, Walker felt that the FRCP were superior in many ways. “Indeed it would be surprising if this were not true,” he wrote, “for the federal rules were drafted by those having special knowledge of the subject with the view of adopting the best in the practice prevailing in the several states, and time has proved their worth.” It took another thirty years, but the state eventually enacted the Alabama Rules of Civil Procedure, which were substantially similar to the FRCP.
Jack Weinstein, a district judge in the Eastern District of New York, looked back at the FRCP on their fiftieth anniversary in 1988. He believed that one of the rules’ most important effects had been to make it easier for plaintiffs to enforce their rights in federal court. Although this increased the courts’ workload, Weinstein saw the change in positive terms, characterizing it as “the basis for an enormous effort, almost a quantum jump, toward equality in fact.” After World War II, he wrote, the nation made strides toward becoming “a society in which we thought the dream of equality before the law and equal opportunity to enforce substantive rights was capable of conversion to real life.” Since the early 1970s, however, slowed economic growth combined with increasing litigation had created political pressure to curtail access to the federal courts. The FRCP were adapted to this purpose, with Rule 11 (which, as described in more detail below, was amended in 1983 to mandate sanctions for bringing frivolous claims) in particular used “to weed out supposedly improper lawsuits.”
Although they could be used to restrict plaintiffs’ access to the federal courts, Weinstein continued to see value in the FRCP. They had simplified procedure, he asserted, to the point where judges barely needed to consider it: “The point is that the spirit of the Federal Rules permits us to reach the substance without technical fidgeting. The issues for me are whether we have jurisdiction; what are the facts; how can they be most readily revealed; and how can the law be applied to the facts? This attitude . . . shows how greatly the Rules have succeeded in de-emphasizing ancillary procedural disputes.”
Selected Judicial Interpretations of the FRCP
Since the FRCP went into effect, the Supreme Court has continually heard cases involving the interpretation, application, and validity of the rules. One of the thorniest issues the Court has had to address deals with choice of law in diversity jurisdiction cases. The Rules of Decision Act commanded federal courts hearing such cases to apply state law, while the Court’s landmark 1938 decision in Erie Railroad v. Tompkins reinforced and strengthened this mandate by specifying that the state law to be applied included state-court decisions as well as state statutes. The Erie Court acknowledged federal control over federal-court procedure, making clear that its holding applied only to substantive state law, but admitted that the line between substance and procedure was often “hazy.” Litigation ensued regarding the application of the FRCP when a rule conflicted with a state law provision not easily categorized as substantive or procedural.
The Court first addressed the choice of law issue in Sibbach v. Wilson & Co. (1941). There, a plaintiff claiming injuries from an auto accident refused to comply with the trial court’s order that she undergo a physical examination, claiming that FRCP 35, which authorized such examinations, was invalid. Instead, she asserted, the court should apply the procedural law of Illinois, the forum state, which did not permit court-ordered physical exams. While admitting that Rule 35 was procedural in nature, the plaintiff nevertheless argued that it violated the Rules Enabling Act’s requirement that federal procedural rules not abridge the “substantive rights” of litigants. The Court disagreed, holding that Rule 35 did not abridge any substantive rights. The test for the validity of a procedural rule, the Court explained, “must be whether a rule really regulates procedure,—the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.” Rule 35 clearly satisfied this test, as all parties acknowledged. Moreover, to accept the plaintiff’s argument that the rule violated “substantive rights” would be to redefine such rights as “substantial” or “important” rights—an untenable result that would gut the ability of Congress and the Court to regulate federal procedure.
After Sibbach, the Court’s decisions regarding the application of the FRCP in diversity cases fell mostly into two categories. In some cases, such as Palmer v. Hoffman (1943), the Court construed a procedural rule narrowly to avoid an Erie conflict with state substantive law. In that case, the Court held that Rule 8(c), which required the defendant to plead contributory negligence when responding to the plaintiff’s complaint, covered only the manner of pleading and did not apply to the burden of proving that claim, which was a matter of substantive law. In another line of cases, beginning with Mississippi Publishing Corp. v. Murphree (1946), the Court upheld the broad application of a rule, finding no danger of an Erie conflict. In Murphree, the Court found that Rule 4(f), which permitted service of process anywhere within the state, even if outside the federal judicial district where the action was brought, had been validly applied. The rule was solely a procedural mechanism for bringing the defendant into court; because it did not enlarge the jurisdiction or venue of the trial court, or the court’s power to decide the case, the rule could not be considered to have any substantive effect.
Although not involving the FRCP, Guaranty Trust v. York (1945), which refined Erie, became relevant to FRCP jurisprudence. In York, the Court held that a diversity suit could not be maintained in federal court when a state statute of limitations would have barred the action if it had been brought in state court. The intent behind Erie, the Court explained, had been “to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court.” York came into play in Ragan v. Merchants Transfer & Warehouse Co. (1949), a rare case in which the Supreme Court blocked the application of a federal rule of procedure on Erie grounds. There, the Court ruled that the Kansas statute of limitations—under which the action would be barred because process had not been served within the two-year limit—took precedence over FRCP 3, which provided that the action began with the filing of the complaint. Pursuant to the Erie-York test, the tolling provision in Rule 3 could not replace the tolling provision of the Kansas statute of limitations to keep the case alive in federal court when it would have been barred if brought in state court.
The Court also ruled that an arguably procedural state provision applied to a federal diversity case otherwise governed by the FRCP in Cohen v. Beneficial Industrial Loan Corp. (1949). There, the Court held that a New Jersey statute requiring plaintiffs in a shareholders’ derivative suit to post a bond for expenses before beginning the action should apply, even though FRCP 23(b), which covered the same subject, included no such requirement. The Court found the New Jersey law to be substantive, and therefore applicable under Erie, because it imposed a liability on the shareholders. Moreover, the state law did not conflict with the federal rule because it merely imposed an additional requirement; thus, both could be followed.
In the landmark case of Hanna v. Plumer (1965), the Court decoupled application of the FRCP from the mandate of Erie. The plaintiff there filed suit in federal court in Massachusetts and served process on the defendant in accordance with FRCP 4(d)(1) but not with Massachusetts law, which, if applied, would have barred the action as a result. Both the district court and the court of appeals held that state law applied, a result consistent with the Erie-York test and its application in Ragan. The Supreme Court reversed, however, holding that the Erie-York test did not apply to cases involving the FRCP. The opinion in Hanna, written by Chief Justice Earl Warren, stressed that Rule 4(d)(1) “neither exceeded the Congressional mandate embodied in the Rules Enabling Act nor transgressed constitutional bounds.” The appropriate test in an FRCP case, the Court held, was embodied not in Erie or York, but in Sibbach: the federal rule would be applied as long as it was part of “the judicial process for enforcing rights and duties recognized by substantive law.”
The Court explained its departure from Erie in the federal rules context by pointing out that the FRCP were the products of “congressional power to make rules governing practice and pleading . . . which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either.” Even without this holding, however, the Court made it clear that it would not have applied the Erie-York paradigm to Hanna. The “outcome-determination” test embodied in York was not intended to be automatic but was instead to be applied when it would serve the policy goals of the Erie doctrine: to prevent forum shopping, and to avoid unequal application of the law. Although application of Massachusetts law would have been outcome determinative (by ending the litigation) in Hanna, the difference between federal and state law in that case affected only the manner of service of process and would not have been relevant to the choice of a forum. Nor would the difference in procedure affect a state-created right in such a way as raise equal protection concerns.
In 2010, the Supreme Court summed up the state of the law in Shady Grove Orthopedic Associates v. Allstate Insurance Co. as follows: “Congress has undoubted power to supplant state law, and undoubted power to prescribe rules for the courts it has created, so long as those rules regulate matters ‘rationally capable of classification’ as procedure. . . . The test is not whether the rule affects a litigant’s substantive rights; most procedural rules do. . . . What matters is what the rule itself regulates: If it governs only ‘the manner and the means’ by which the litigant’s rights are ‘enforced,’ it is valid; if it alters ‘the rules of decision by which [the] court will adjudicate [those] rights,’ it is not.” Under that test, the Court noted, it had consistently rejected statutory challenges to the FRCP.
Another important line of Supreme Court cases focused on pleading requirements under the FRCP. The drafters of the rules had as one of their primary aims the simplification of pleading so that cases would be resolved on their merits rather than on technicalities. To that end, FRCP 8(a) required that a complaint include “a short and plain statement of the claim showing that the pleader is entitled to relief.” In Conley v. Gibson (1957), the Court set out a long-enduring standard under which complaints in federal court would be judged, endorsing the concept of “notice pleading.” The FRCP did not require that a complaint set forth all of the relevant facts, only that it give the defendant “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Most importantly, the Court held that a Rule 12(b)(6) motion to dismiss a complaint for failure to state a claim should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
The liberal “no set of facts” standard lasted for half a century after being made explicit in Conley, until the Court altered it with its decisions in Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009). Even before these cases were decided, however, lower federal courts had in practice tightened pleading requirements somewhat in response to rising caseloads and escalating litigation costs. In Twombly—a class-action suit alleging a conspiracy among telecommunications providers in violation of Section 1 of the Sherman Act—the Court held that the complaint should be dismissed for failure to state a claim because the plaintiffs’ factual allegations, if true, were insufficient to suggest that the defendants had conspired. To survive dismissal, the complaint would have had to provide details such as which of the providers or their employees entered into illegal agreements, and where and when the agreements were made. These were matters that might have been left to the discovery process under the Conley standard, but the Court declared that the “no set of facts” rule had “earned its retirement.” Going forward, a complaint under Section 1 would have to demonstrate a “plausible” chance of success on the merits. As one legal scholar described it, Twombly had added a new dimension to a pleading process that had previously been focused solely on providing the defendant with notice of the plaintiff’s claim: “to decide which cases are worthy of burdening defendants with discovery.” Two years later, the Court made clear in the Iqbal case—in which a detained terrorism suspect accused the Attorney General of the United States and other government officials of subjecting him to harsh conditions of confinement because of his race and religion—that the new heightened pleading standard would apply across the board, and not only to class actions or complex antitrust cases.
In addition to a Rule 12 motion to dismiss a case on the pleadings, the FRCP provided a method for disposing of a case after the discovery process was complete. Under Rule 56, any party could move for summary judgment on the grounds that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In Adickes v. S. H. Kress & Co. (1970), the Supreme Court reversed a grant of summary judgment disposing of a plaintiff’s claim that a restaurant and the local police had conspired to deprive her of civil rights. The trial court ruled that summary judgment in favor of the defendant was appropriate because the plaintiff had not produced any evidence from which a conspiracy could be inferred. The Supreme Court held that the district court had misapplied the burden of proof. “As the moving party,” the Court stated, “[defendant] had the burden of showing the absence of a genuine issue as to any material fact, and, for these purposes, the material it lodged must be viewed in the light most favorable to the opposing party.” Based on this standard, the defendant had not carried its burden of foreclosing the possibility of a conspiracy, and the plaintiff was entitled to proceed to trial on her claim.
In 1986, a trio of Supreme Court cases—Matsushita v. Zenith, Anderson v. Liberty Lobby, and Celotex Corp. v. Catrett (together known as the “Celotex triology”)—expanded the circumstances under which summary judgment could be granted. In Matsushita, an antitrust conspiracy case, the Court imposed on the plaintiffs a “plausibility” requirement for surviving a summary judgment motion similar to that it later applied in the Rule 12 context in Twombly. Finding that the economic evidence rendered the plaintiffs’ claims of a conspiracy implausible, the Court ruled that the plaintiffs were required to present more persuasive evidence than would normally be required to survive a summary judgment motion. The dissenting justices asserted that a reasonable factfinder could have found evidence of a conspiracy and argued that the majority had “made assumptions that invade the factfinder’s province.”
The Court placed further burdens on plaintiffs seeking to avoid summary judgment in Anderson, a libel case in which the Court held that the standard of proof governing at trial should also apply to a motion for summary judgment. Because the plaintiffs would have needed to satisfy the “clear and convincing evidence” standard to prevail at trial, “a scintilla of evidence” from the plaintiffs was insufficient to avoid summary judgment. Instead, they would be required to show “evidence on which the jury could reasonably find” in their favor. The Court also held that trial judges must assess the “quantum and quality” of evidence in determining whether a genuine issue of material fact exists.
The same day it released its decision in Anderson, the Court handed down its ruling in Celotex, a wrongful death suit involving alleged exposure to asbestos. A plurality of the Court held that Rule 56 did not require the defendant to provide evidence in support of its motion for summary judgment if the plaintiff, after reasonable time for discovery, had failed to adduce any admissible evidence showing the existence of a genuine issue of material fact. Many observers read the Celotex decision as repudiating the Court’s earlier holding in Adickes that the moving party must affirmatively refute an element of the opponent’s claim. The Celotex plurality asserted, however, that Adickes required only that the moving party make a prima facie case for summary judgment by pointing to the absence of evidence in the record supporting the nonmovant’s claim. The Celotex trilogy portended an expanded use of summary judgment in the federal courts. As the plurality noted in Celotex, summary judgment “is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules.”
Amendments to the FRCP
The FRCP have been subject to extensive amendment since their adoption in 1938. The original Advisory Committee continued in operation to propose amendments to the rules until the Court discharged it in 1956. In 1958, Congress passed legislation permitting the JCUS to “carry on a continuous study” of federal rules of practice and procedure. In response, the JCUS created the Committee on Rules of Practice and Procedure, which in turn established the Advisory Committee on Rules of Civil Procedure. The new Advisory Committee stepped into the shoes of its predecessor, continuing to propose FRCP amendments.
Most FRCP amendments have been relatively uncontroversial, but some have inspired vigorous debate. One important point of contention was Rule 11, which required that every pleading be signed by an attorney and provided that the attorney’s signature serve as an attestation that to the best of the attorney’s knowledge the pleading had “good ground to support it” and was not intended to cause delay. The initial version of Rule 11 stated that a pleading in violation of the rule would be stricken and that the attorney “may be subjected to appropriate disciplinary action.” In 1983, the rule was amended, the Advisory Committee having found that the vague prospect of disciplinary action had “not been effective in deterring abuses.” The new Rule 11 placed an affirmative duty upon attorneys, requiring “reasonable inquiry” to determine that the pleading, motion, or other paper was both “well grounded in fact” and “warranted by existing law or a good faith argument” for modifying the law. Perhaps most importantly, the amended rule required the court to impose monetary sanctions, which could include expenses and reasonable attorneys’ fees incurred by the opposing party, on an attorney or party responsible for an improper filing.
Studies suggested that the amended rule made attorneys more cautious and diligent, and discouraged the filing of frivolous claims, but the rule soon became controversial. The prospect of recovering compensatory sanctions made some litigants and attorneys eager to make Rule 11 motions, resulting in a significant increase in so-called “satellite litigation” and, in some attorneys’ view, eroding the civility of the legal profession. As a result of the perceived overuse of Rule 11, the rule was amended again in 1993. The 1993 amendments made monetary sanctions discretionary rather than mandatory, disfavored compensation for expenses incurred by opposing parties, and provided a twenty-one-day “safe harbor” during which an attorney could withdraw or correct the offending filing without penalty. Justices Antonin Scalia and Clarence Thomas dissented from the Supreme Court’s adoption of the 1993 amendments, arguing that they would render Rule 11 “toothless.” The revisions fulfilled their intended purpose of decreasing the amount of Rule 11 litigation, while lawyers and judges debated its effectiveness relative to the 1983 version of the rule in deterring misconduct.
Prior to the Rule 11 controversy, major revisions to Rule 23 on class actions caused a great deal of debate. The Advisory Committee rewrote Rule 23 almost entirely in 1966 in response to complaints that the old rule categorized the various types of class actions in a way that was confusing and unhelpful. The committee explained that it was changing the rule to more clearly indicate the circumstances under which class actions could be brought, to clarify the effect of judgments on members of a class, and to incorporate improved procedures to ensure that class actions were conducted fairly. After the revision, the use of the class-action device increased dramatically. Critics of the revised Rule 23 attributed the rising number of such cases to the 1966 amendments, while others claimed that the amendments had made few, if any, substantive changes, and that most post-1966 class actions could have been brought under the old rule. The increase in class actions, some argued, could be attributed to other factors, including the greater prominence of causes such as civil rights, environmental regulation, and consumer protection. The rule revision also provoked debate between those who saw class actions as a useful device for holding the powerful to account and vindicating the rights of the “little guy” and those who claimed that class actions operated as a form of “legalized blackmail” of corporations that primarily served the interests of the attorneys who brought them.
Rule 16, which covers pretrial conferences, remained unchanged from its adoption in 1938 until the Advisory Committee expanded and modified it in 1983, finding that it needed updating in light of the complexity of modern litigation. The original rule, which provided for conferences focused mainly on the trial itself, was criticized as being insufficient for some large cases and excessive for simple ones. The updated rule made explicit that conferences were a judicial management tool that should encompass the entire pretrial phase, including motions and discovery. While the ordering of a pretrial conference remained within the trial judge’s discretion, the revised rule made the issuance of a scheduling order mandatory. The amendments also expanded the list of topics the court could cover during a pretrial conference to improve the overall management of the litigation. These topics included settlement and the use of alternative dispute resolution, for example. Whether or not a pretrial conference was held early in the litigation, the rule further permitted the judge to order a “final pretrial conference” to be held as close to the trial as possible to discuss a plan for the trial, including the admission of evidence.
Some amendments were necessitated by changing times. These include the changes to the rules concerning the discovery process, namely FRCP 26 through 37, of which there have been many. Of particular note are the 2006 amendments made to accommodate electronic discovery. While computerized information had long been subject to discovery in litigation, the Advisory Committee elected to amend the FRCP to make specific provisions to define what electronically stored information was discoverable, control the costs associated with electronic discovery, and protect privileged information. In Rule 26, for example, electronically stored information was added to the list of materials the parties were required to list in their initial disclosures. The rule allowed parties to avoid producing such information “from sources that the party identifies as not reasonably accessible because of undue burden or cost” unless otherwise ordered by the court, however. At the same time, Rule 34, which originally covered procedures for the production of “documents” and “things” (and after 1970, “data compilations”), was revised to explicitly include electronically stored information. As the Advisory Committee noted, the amendment was intended “to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents.”
The Advisory Committee made significant revisions to the rules regarding “e-discovery” that became effective in 2015. The amendments focused on Rule 37(e) regarding the failure to preserve electronically stored information. The original section gave little guidance to judges, providing only that they should not, absent exceptional circumstances, impose sanctions on a party who lost electronic information while acting in good faith. The new Rule 37(e) provided a clearer standard for determining when a party should be sanctioned as well as the types of sanctions a judge could impose. Only if a party lost electronically stored information “that should have been preserved in the anticipation or conduct of litigation” could sanctions be imposed, and even then, only if the party had failed to take reasonable steps to preserve the information, the information could not be restored or replaced, and an opposing party suffered prejudice as a result. Moreover, sanctions having a substantive effect on the litigation, such as making a presumption that the information was unfavorable to the party who lost it, were reserved for situations in which a party intentionally made such information unavailable to an opponent in the litigation.
Other recent amendments of note include the 2009 revision of Rule 6, which governs the computation of time. The previous version of the rule had provided that Saturdays, Sundays, and holidays were to be included in computing periods of eleven days or more but excluded from periods shorter than eleven days. To remove this potentially confusing variation, the new rule provided that all days be counted regardless of the length of time being computed (with the exception that a deadline falling on a Saturday, Sunday, or legal holiday would be moved to the next day not in any of those categories). To prevent the simplified Rule 6 from accelerating deadlines excessively, adjustments were made to other rules containing filing deadlines. In Rule 12, for example, deadlines of ten and twenty days for filing certain responsive pleadings and motions were extended to fourteen and twenty-one days, respectively.
Finally, the FRCP underwent a complete restyling in 2007. According to the Advisory Committee’s explanatory note, the amendments were intended to make the rules “more easily understood and to make style and terminology consistent throughout the rules.” The changes were “intended to be stylistic only.” The restyling effort was also motivated by the desire of the JCUS to create a uniform drafting style for all federal procedural rules—civil, criminal, appellate, bankruptcy, and evidence—which had been drafted by different committees at different times and therefore varied widely in language. To that end, the Standing Committee on Rules of Practice and Procedure created a Style Subcommittee in 1991. The “Style Project” was not without controversy. Critics expressed concern about the uncertainty that accompanied an effort to change nearly every word of the FRCP, and some expressed doubt that such a thing could be accomplished without changing the meaning of any of the rules. Although reactions to the restyled rules were mixed, almost everyone acknowledged that the new rules were clearer and easier to read, and there were few complaints that substantive changes—which the subcommittee had gone to great lengths to avoid—had resulted.