You are here

Rules of Practice and Procedure: Online-Only Research Reports on Federal Rules

Unredacted Social Security Numbers in Federal Court PACER Documents
Joe S. Cecil, George Cort, Ashley Springer, and Vashty Gobinpersady
2015, 26 pages (Available Online Only)
This report summarizes a Center study of instances of individuals' unredacted Social Security numbers appearing in documents filed in federal district and bankruptcy courts in November 2013 and available through the Public Access to Court Electronic Records (PACER) service. The presence of Social Security numbers for approximately 75% of these individuals appears to violate rules adopted by the Judicial Conference of the United States.

Report on Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action
Emery G. Lee III and Jason A. Cantone
2015, 8 pages (Available Online Only)
A brief report on case-processing times, case outcomes, and motions practice in employment discrimination cases included in a pattern discovery pilot, compared with a nationwide random sample of similar cases. The report finds that case-processing times did not differ between the pilot and comparison cases, but that motions practice was greater in the comparison cases.

Study of Class Action Objector Appeals in the Second, Seventh, and Ninth Circuit Courts of Appeals: Report to the Advisory Committee on Appellate Rules of the Judicial Conference of the United States
Marie Leary
2013, 99 pages (Available Online Only)
This report to the Judicial Conference’s Advisory Committee on Appellate Rules focused on class action objector appeals filed in the Second, Seventh, and Ninth Circuits from settlements approved by the district courts in class actions filed after January 1, 2008. The objector appeals studied were filed from January 1, 2008, through March 1, 2013, in the Seventh Circuit, through June 1, 2013, in the Second Circuit, and through July 1, 2013, in the Ninth Circuit. The study focused on the overall frequency of class action objector appeals during the study period, the final disposition of the class action objector appeals filed and no longer pending, and the prevalence of Appellate Rule 7 cost bonds imposed on the objector appeals identified.

Survey of District Court Judges on a Proposed Amendment to Federal Rule of Evidence 801(d)(1)(B) Concerning Prior Consistent Statements
Tim Reagan and Margaret S. Williams
2012, 26 pages (Available Online Only)
This report was prepared for the Advisory Committee on the Federal Rules of Evidence. Under the current version of Fed. R. Evid. 801(d)(1)(B), prior consistent statements are admissible for their substance as well as for their rehabilitation only if they rebut recent fabrication because they occurred before the fabrication motive. If a prior consistent statement is admissible for credibility but not admissible for substance, the opposing party is entitled to a jury instruction. Because of perceived difficulties with such an instruction, an amendment to Rule 801(d)(1)(B) was proposed to the Evidence Rules Committee. This paper reports the results of an FJC survey of district judges on matters related to the proposed amendment.

Early Stages of Litigation Attorney Survey: Report to the Judicial Conference Advisory Committee on Civil Rules
Emery G. Lee III
2012, 18 pages (Available Online Only)
This report summarizes the findings of a study of the operation of Federal Rules of Civil Procedure 26(f) and 16(b) in a nationwide sample of recently terminated civil cases.

Update on Resolution of Rule 12(b)(6) Motions Granted with Leave to Amend: Report to the Judicial Conference Advisory Committee on Civil Rules
Joe S. Cecil, George W. Cort, Margaret S. Williams, Jared J. Bataillon, and Jacqueline G. Campbell
2011, 19 pages (Available Online Only)
In our March 2011 report, we indicated that following the Supreme Court decision in Ashcroft v. Iqbal (2009), Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for failure to state a claim were granted more frequently with leave to amend the complaint. We also noted that the opportunity to amend the complaint may cure the defect and change the findings of the study. The Advisory Committee asked that we follow the events in the study cases, determine the extent to which the respondents submitted amended complaints, and report the outcome of any subsequent motions to dismiss.

The Timing of Scheduling Orders and Discovery Cut-Off Dates
Emery G. Lee III
2011, 13 pages (Available Online Only)
The Judicial Conference Advisory Committee on Civil Rules asked the Federal Judicial Center to study the operation of Rules 16 and 26(f) in the district courts. This report summarizes findings of part of that study. Specifically, this report examines the timing of Rule 16 scheduling orders in civil cases and, drawing from those scheduling orders, also examines the timing of the first discovery cut-off date imposed, without regard to any extension. The data analyzed in this report were drawn from court records in 11 districts.

Motions for Sanctions Based Upon Spoliation of Evidence in Civil Cases: Report to the Judicial Conference Advisory Committee on Civil Rules
Emery G. Lee III
2011, 11 pages (Available Online Only)
In 2010, the Judicial Conference Advisory Committee on Civil Rules requested a study of motions for sanctions based on an allegation that the nonmoving party had destroyed evidence, especially electronically stored information (ESI). The study examined the electronic docket records of civil cases filed in 2007–2008 in 19 districts, including at least one district in every circuit except the District of Columbia Circuit. This report summarizes the findings of that study and, where appropriate, compares those findings to other studies.

Comparative Study of the Taxation of Costs in the Circuit Courts of Appeals Under Rule 39 of the Federal Rules of Appellate Procedure: Report to the Advisory Committee on Appellate Rules of the Judicial Conference of the United States
Marie Leary
2011, 94 pages (Available Online Only)
The Judicial Conference Advisory Committee on Appellate Rules requested this report on circuit practices for awarding costs under Rule 39 of the Federal Rules of Appellate Procedure. The report describes the variations among the circuits' rules and procedures, compares how the circuits have implemented Fed. R. App. P 39, and presents a comparative analysis of costs awards. It also offers some procedural and conclusory observations from the research.

Motions to Dismiss for Failure to State a Claim After Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules
Joe S. Cecil, George W. Cort, Margaret S. Williams, and Jared J. Bataillon
2011, 52 pages (Available Online Only)
This report presents the findings of a Federal Judicial Center study on the filing and resolution of motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The study was requested by the Judicial Conference Advisory Committee on Civil Rules. This request was prompted by two recent Supreme Court decisions — Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) — that interpreted Rule 8(a) by stating that a plaintiff must present a "plausible" claim for relief.

A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases: Final Report to the Advisory Committee on Criminal Rules
Laural Hooper, David Rauma, Marie Leary, and Shelia Thorpe
2011, 52 pages (Available Online Only)
The Center prepared this report at the request of the Advisory Committee on Criminal Rules as it considers whether to amend Rule 16 to incorporate the government's constitutional obligation to provide exculpatory and impeachment evidence to the defense or, instead, to create a broader disclosure obligation. The Center conducted a national survey, which included an online survey of all federal district and magistrate judges, U.S. Attorneys' Offices, federal defenders, and a sample of defense attorneys in criminal cases that terminated during calendar year 2009.

Motions for Sanctions Based Upon Spoliation of Evidence in Civil Cases: Report to the Judicial Conference Advisory Committee on Civil Rules
Emery G. Lee III
2011, 11 pages (Available Online Only)
In 2010, the Judicial Conference Advisory Committee on Civil Rules requested a study of motions for sanctions based on an allegation that the nonmoving party had destroyed evidence, especially electronically stored information (ESI). The study examined the electronic docket records of civil cases filed in 2007-2008 in 19 districts, including at least one district in every circuit except the District of Columbia Circuit. This report summarizes the findings of that study and, where appropriate, compares those findings to other studies.

Attorney Satisfaction with the Federal Rules of Civil Procedure—Report to the Judicial Conference Advisory Committee on Civil Rules
Emery G. Lee III and Thomas E. Willging
2010, 20 pages (Available Online Only)
This report compares selected questions from opinion surveys regarding civil litigation completed by members of the American College of Trail Lawyers, ABA Section of Litigation, and National Employment Lawyers Association (NELA).

A Study of the Role and Impact of Special Masters in Patent Cases
Jay P. Kesan and Gwendolyn G. Ball
2009, 18 pages (Available Online Only)
Report of a study of the use of special masters in patent litigation.

Federal Judicial Center National, Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules
Emery G. Lee III and Thomas E. Willging
2009, 191 pages (Available Online Only)
This report presents preliminary findings from a survey of attorneys in recently closed civil cases which the Federal Judicial Center conducted in May and June 2009. Nearly half of the attorneys invited to participate responded. The report covers discovery activities and case management in the closed cases; electronic discovery activities in the closed cases; attorney evaluations of discovery in the closed cases; the costs of litigation and discovery; and attitudes toward specific reform proposals and, more generally, the Federal Rules of Civil Procedure.

Sealed Cases in Federal Courts
Tim Reagan and George W. Cort
2009, 36 pages (Available Online Only)
An analysis of all cases filed in federal district courts, bankruptcy courts, and courts of appeals in 2006 revealed that 0.2% of civil cases, 1.6% of criminal cases, 16% of magistrate judge cases, 34% of miscellaneous cases, and 0.1% of appeals were sealed approximately two years after filing. Cases filed in bankruptcy courts are virtually never sealed. This report, prepared for a sealed case subcommittee of the Judicial Conference's standing Committee on Rules of Practice and Procedure, describes why and how cases were sealed.

Impact of the Class Action Fairness Act on the Federal Courts: Preliminary Findings from Phase Two's Pre-CAFA Sample of Diversity Class Actions
Emery G. Lee III, Thomas E. Willging, George Cort, Laural Hooper, Marie Leary, Angelia Levy, Dean Miletich, Robert Niemic, and Shelia Thorpe
2008, 18 pages (Available Online Only)
The preliminary findings presented in this report suggest that, in diversity class actions, there is less to class allegations than one would expect. There was relatively little motions activity in the typical case, and the majority of cases not remanded to state court were voluntarily dismissed. Most plaintiffs did not move to certify a class. But all class actions in which a class was certified, whether for litigation or settlement purposes, ended with class settlements.

Report on Summary Judgment Practice Across Districts with Variations in Local Rules
Joe Cecil and George Cort
2008, 19 pages (Available Online Only)
The Judicial Conference Advisory Committee on Civil Rules asked the Federal Judicial Center to examine summary judgment practice across federal district courts as a means of assessing the potential impact of proposed amendments to Rule 56 of the Federal Rules of Civil Procedure.

The Impact of the Class Action Fairness Act of 2005 on the Federal Courts: Fourth Interim Report to the Judicial Conference Advisory Committee on Civil Rules
Emery G. Lee III and Thomas E. Willging
2008, 29 pages (Available Online Only)
The Class Action Fairness Act of 2005 (CAFA) (Pub. L. No. 109-2, 119 Stat. 4 (2005)) expanded the federal courts' diversity of citizenship jurisdiction over class action litigation. Congress's intent was, in part, to shift some class action litigation from the state courts to the federal courts. Passage of the Act sparked concerns about the impact of these additional class actions on the federal courts' procedures and workload. In light of these concerns, the Judicial Conference's Advisory Committee on Civil Rules (Advisory Committee)1 asked the Federal Judicial Center (FJC) to study the impact of CAFA on the federal courts. This report marks the end of the first phase of the FJC study on the impact of CAFA on the number of class actions initiated in the federal courts. This report presents interim findings on class actions filings and removals in the federal courts from July 1, 2001, through June 30, 2007. These findings are consistent with the hypothesis that CAFA has caused an increased number of class actions based on diversity of citizenship jurisdiction to be filed in the federal courts.

Federal Judicial Center Exploratory Study of the Appellate Cost Bond Provisions of Rule 7 of the Federal Rules of Appellate Procedure
Marie Leary
2008, 24 pages (Available Online Only)
At its Fall 2007 meeting, the Appellate Rules Advisory Committee discussed the current circuit split over whether Federal Rule of Appellate Procedure 7 authorizes the inclusion of attorney fees in a bond for costs on appeal. This item has been brought back before the Committee as it determines whether, in light of recent case law developments, to proceed with a proposed amendment approved by the Committee in 2003 which made clear that FRAP 7 bond "costs" do not include attorney fees. This report describes an exploratory study undertaken by the FJC of FRAP 7 bond activity in three federal district courts: the Southern District of New York, the Central District of California, and the Eastern District of Michigan. These districts are in circuits that permit attorney fees to be included in FRAP 7 cost bonds.

A Quarter-Century of Summary Judgment Practice in Six Federal District Courts
Joe S. Cecil, Rebecca N. Eyre, Dean Miletich, and David Rindskopf
2008, 24 pages (Available Online Only)
Report of a Federal Judicial Center study of summary judgment practice in six federal district courts during six time periods over twenty-five years (1975-2000), to determine whether summary judgment activity has increased over time and to what extent changes in summary judgment practice are due to the 1986 Supreme Court trilogy of summary judgment cases. From 4 Journal of Empirical Legal Studies 861-907 (2007).

Progress Report to the Advisory Committee on Civil Rules on the Impact of CAFA on the Federal Courts
Emery G. Lee III and Thomas E. Willging
2007, 8 pages (Available Online Only)
The Federal Judicial Center undertook a long-term study of the impact of the Class Action Fairness Act of 2005 (CAFA) on the resources of the federal courts. This progress report on the impact of CAFA was presented to the Advisory Committee on Civil Rules on November 8, 2007. The report presents an account of the progress of this long-term study as well as new information on class action activity in California and new data on consumer protection class actions and remand rates for removed cases.

Initial Report on Summary Judgment Practice Across Districts with Variations in Local Rules
Joe Cecil and George Cort
2007, 17 pages (Available Online Only)
The Advisory Committee on Civil Rules asked the Federal Judicial Center to examine summary judgment practice across federal district courts as a means of assessing the potential impact of the proposed amendments to Rule 56. This initial report examined summary judgment practice in the 276,120 civil cases terminated in the federal district courts in Fiscal Year 2006.

Estimates of Summary Judgment Activity in Fiscal Year 2006
Joe Cecil and George Cort
2007, 10 pages (Available Online Only)
The Advisory Committee on Civil Rules asked the Federal Judicial Center to examine summary judgment practice across federal district courts as a means of assessing the potential impact of the proposed amendments to Rule 56. This report examined summary judgment activity in 179,969 cases terminated in the 78 federal district courts that had fully implemented the CM/ECF reporting system in Fiscal Year 2006.

Brady v. Maryland Material in the United States District Courts: Rules, Orders, and Policies
Laural Hooper and Shelia Thorpe
2007, 68 pages (Available Online Only)
An update of Treatment of Brady v. Maryland Material in United States District and State Courts' Rules, Orders, and Policies, the October 2004 report to the Advisory Committee on Criminal Rules as it and the Standing Committee on the Rules of Practice and Procedure consider proposed amendments to Rule 16 of the Federal Rules of Criminal Procedure.

Research on Appeals of Attorney-Fee and Merits Decisions (Fed R Civ P 58(c)(2)) as Presented to the Advisory Committee on Civil Rules in May 2006
Rebecca Norwick Eyre
2006, 10 pages (Available Online Only)
In early 2006, the Federal Judicial Center examined the prevalence of the use of Federal Rule of Civil Procedure 58(c)(2) and the circumstances under which appeals of judgments on the merits and decisions regarding attorney fees can occur at the same time. Two resulting memoranda were presented to the Advisory Committee on Civil Rules in May 2006.

Treatment of Brady v. Maryland Material in United States District and State Courts' Rules, Orders, and Policies
Laural L. Hooper, Jennifer E. Marsh, and Brian Yeh
2004, 28 pages (Available Online Only)
The Center prepared this report at the request of the Advisory Committee on Criminal Rules as it considers whether to propose amendments to Rules 11 and 16 to codify the disclosure requirements in Brady v. Maryland. The committee wanted to know whether federal district courts and state courts have adopted formal rules or standards that provide prosecutors with specific guidance on discharging their Brady obligations. This report describes the federal district court local rules, orders, and policies that address Brady material, and the treatment of Brady material in state statutes and in court rules and policies. For an update to this report see Brady v. Maryland Material in the United States District Courts: Rules, Orders, and Policies (2007).

Attorney Reports on the Impact of Amchem and Ortiz on Choice of a Federal or State Forum in Class Action Litigation: A Report to the Advisory Committee on Civil Rules Regarding a Case-based Survey of Attorneys
Thomas E. Willging and Shannon R. Wheatman
2004, 119 pages (Available Online Only)
While considering a proposal to amend Federal Rule of Civil Procedure 23 to create new certification standards that would apply only to settlement class actions, the Advisory Committee on Civil Rules sought this empirical research from the Center to help it decide how to proceed. This report is the second phase. For the first phase see Effects of Amchem/Ortiz on the Filing of Federal Class Actions: Report to the Advisory Committee on Civil Rules (2002).

Survey of Bankruptcy Judges Regarding Use of Rule 7026 Mandatory Disclosure in Adversary Proceedings
Robert J. Niemic and Shannon Wheatman
2004, 60 pages (Available Online Only)
Rule 26 of the Federal Rules of Civil Procedure requires each party to disclose to the other, at specified time intervals, a variety of information about their case. These mandatory disclosures are covered by Rule 26: (a)(1) initial disclosure, (a)(2) expert testimony disclosure, and (a)(3) pretrial disclosure. Civil Rule 26 is made applicable to adversary proceedings in bankruptcy by Rule 7026 of the Federal Rules of Bankruptcy Procedure. Rule 26 is Appendix 1. The Advisory Committee on Bankruptcy Rules asked the Federal Judicial Center to survey bankruptcy judges about whether the Committee should recommend an amendment to Bankruptcy Rule 7026 to exempt certain categories of adversary proceedings from the mandatory disclosure requirements of Rule 26. These survey results were submitted to the Judicial Conference Advisory Committee on Bankruptcy Rules in March 2004.

Effects of Amchem/Ortiz on the Filing of Federal Class Actions: Report to the Advisory Committee on Civil Rules
Bob Niemic and Tom Willging
2002, 46 pages (Available Online Only)
The Class Action Subcommittee of the Advisory Committee on Civil Rules asked the Federal Judicial Center to examine the impact, if any, of the Supreme Court decisions in Amchem and Ortiz on the rate at which plaintiffs file class actions in federal courts. The resulting report describes trends in federal class action filings, removals, settlements, and dismissals during the period from January 1994 through June 2001 and identifies certain discernible changes after the two decisions. The report discusses the results of a time-series analysis that tested whether there were any statistically significant relationships between the two decisions and the filing/disposition patterns found. Certain of the changes observed were not likely to have occurred by chance; however, many factors might have affected filings.

Defining the 'Majority' Vote Requirement in Federal Rule of Appellate Procedure 35(a) for Rehearings En Banc in the United States Courts of Appeals
Marie Leary
2002, 27 pages (Available Online Only)
This report was prepared at the request of the Committee on Appellate Rules as they consider proposing a uniform rule on en banc voting procedures for the courts of appeals.

Implementation of the Disclosure Provisions in Federal Rule Civil Procedure 26 by the United States Bankruptcy Courts
Elizabeth C. Wiggins and Shannon Wheatman
2000, 45 pages (Available Online Only)
This is an update to the FJC's 1995 study of the implementation of Rule 26 disclosure provisions by the U.S. Bankruptcy Courts. This update includes new data on disclosure provisions and related local rules collected from the Bankruptcy Courts during the summer of 2000.

Court-Ordered Mental Examinations of Capital Defendants: Procedures in Ten States
Laural L. Hooper, Jennifer Evans, and Robert Nida
1999, 75 pages (Available Online Only)
Report to the Advisory Committee on Criminal Rules regarding the proposal to amend Rule 12.2. Procedures governing court-ordered mental examinations are presented as they have been implemented in a sample of districts with extensive death penalty experience.

Middle Ground Districts
Thomas E. Willging
1998, 3 pages (Available Online Only)
Memorandum to the Judicial Conference Advisory Committee on Civil Rules identifying two districts—the Northern District of Alabama and the Central District of California—as examples of "the 'middle ground' between current requirements and abolition of disclosure requirements."

Numerical and Durational Limitations on Discovery Events as Adopted in Federal Local Rules and State Practices
Marie Cordisco Leary and Thomas E. Willging
1998, 69 pages (Available Online Only)
Conducted at the request of Advisory Committee on Civil Rules, the report describes the local rules or practices in all ninety-four federal districts regarding numerical limitations on interrogatories and depositions and durational limits on depositions.

Rule 2004 Examinations—Survey Results
Beth Wiggins and Naomi Medvin
1996, 59 pages (Available Online Only)
Memorandum to the Judicial Conference Advisory Committee on Bankruptcy Rules responding to a request for an estimate of the number of motions and other requests for Rule 2004 examinations and information about current practices related to Rule 2004 examinations.

Protective Order Activity in Three Federal Judicial Districts: Report to the Advisory Committee on Civil Rules
Elizabeth C. Wiggins, Melissa J. Pecherski, and George Cort
1996, 22 pages (Available Online Only)
This report to the Judicial Conference Advisory Committee on Civil Rules summarized work underway at the Federal Judicial Center concerning protective orders, confidential settlement agreements, and other sealed court records. The general purpose of the work was to provide the information necessary to evaluate the efficacy of Federal Rule of Civil Procedure 26(c) and to address the potential need for additional provisions in the rules relating to sealed court records and sealed settlement agreements.

Rule 1006: Paying Filing Fee Installments through the Chapter 13 Trustee
Beth Wiggins
1994, 42 pages (Available Online Only)
Survey results regarding suggested changes to Federal Rule of Bankruptcy Procedure 1006 are presented in this memo.