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Costs of Litigation

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This guide summarizes issues related to third-party financing of civil litigation. It discusses how judges might manage cases involving litigation financing, including ethical issues, legal issues raised by financing agreements, and discovery issues related to such agreements. 

For more information on third-party litigation financing, visit the Third Party Litigation Financing Special Topics Page.

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Judge Paul W. Grimm, District of Maryland, developed the attached PowerPoint presentation describing the 2015 amendments to the Federal Rules of Civil Procedure. The amendments reformed discovery rules to maximize efficiency, including cost containment, and were not intended to deprive parties in civil litigation of proof or defense.

Additional information is available on the Federal Judicial Center’s website at Amendments to the Federal Rules of Practice and Procedure (webpage).

Available for Distribution

Video Series: The amendments to the Federal Rules of Civil Procedure that became effective on December 1, 2015, reformed discovery rules for the sake of efficiency, including cost containment. The amendments are not intended to deprive parties in civil litigation of proof or defense.

The first video in this series of five short videos provides an overview of the amendments. The other four videos address the four primary themes of the amendments. Also posted on this website is text of Amendments to the Federal Rules of Practice and Procedure.

Discussion of these amendments is the principal topic of The Chief Justice's 2015 Year-End Report.

Overview
Amendments to the Federal Rules of Civil Procedure, which became effective on December 1, 2015, foster more cost-effective discovery through cooperation, proportionality, early and active case management, and considerations of electronically stored information (ESI). This video is an overview of amendments to Rules 1, 16, 26, 34, and 37.

Cooperation
An amendment to Federal Rule of Civil Procedure 1, which became effective on December 1, 2015, resulted from a finding that civil litigation is resolved more quickly and less expensively when parties and lawyers cooperate. The amendment makes explicit that the rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding."

Proportional Discovery
This video describes amendments to Federal Rules of Civil Procedure 26(b)(1), 26(c)(1)(B), 26(d), and 34 that became effective on December 1. Amendments to Rule 26(b)(1) are designed to promote proportional discovery: discovery tailored by the judge and the parties to meet the reasonable needs of the case. Proportional discovery provides the information needed by the litigants to prove their cases, but avoids excess and waste. Judges are encouraged to engage in a dialogue with the parties regarding the amount of discovery reasonably needed to resolve the litigation. This video also describes amended Rule 26(c)(1)(B) on cost shifting, an amendment to Rule 26(d) on document production, and changes to Rule 34 on objections to document production requests.

Early and Active Case Management
Amendments to the Federal Rules of Civil Procedure that became effective on December 1, 2015, respond to findings that early intervention by judges helps to narrow issues and reduce discovery. Litigation results are more satisfactory when a judge actively manages a case from the beginning and stays involved. The amendments do not break new ground; they emphasize the importance of early, hands-on, and continuing case management. The times for service of a complaint and the time for holding an initial case-management conference are reduced. The rules now recognize that live conferences are almost always the most effective way to identify the needs of a case and issue orders tailored to efficient resolution. Discovery disputes should be addressed by discussion before motion. The amendments also concern preservation of electronically stored information (ESI) and Federal Rule of Evidence 502's protections against inadvertent waiver of the attorney–client privilege and work-product protections.

Failure to Preserve Electronically Stored Information
Amendments to Federal Rule of Civil Procedure 37(e), which became effective on December 1, 2015, specify that sanctions for failure to preserve electronically stored information (ESI) require findings that (1) the ESI should have been preserved in the anticipation of litigation, (2) the party failed to take reasonable steps to preserve it, and (3) it cannot be restored or replaced through additional discovery. The rule does not create a duty to preserve ESI. Instead, it leaves in place the common-law duty.

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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.

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This report presents a mutlivariate analysis of factors associated with litigation costs in a sample of recently closed civil cases. It uses data first presented in the Center's October 2009 Preliminary Report to the Advisory Committee on Civil Rules and is based on a national case-based survey on the costs of litigation under the Federal Rules of Civil Procedure.

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This report presents the results of interviews of a small group of attorneys who had completed the Center's case-based survey on the costs of litigation under the Federal Rules of Civil Procedure. The attorneys discuss the principal factors associated with higher litigation costs, particularly discovery, and they also discuss pleading standards, summary judgment, and other procedural matters.

In Print: Available for Distribution

This manual provides trial judges a handbook on managing civil cases. It sets out a wide array of case-management techniques, beginning with early case screening and concluding with steps for streamlining trials and final disposition. It also discusses a number of special topics, including pro se and high visibility cases, the role of staff, and automated programs that supports case management. This new edition incorporates statutory and rules changes and contains updated advice on electronic case management, electronic discovery, and ways of containing costs and expediting cases. The manual, which was produced and is being updated pursuant to a requirement set forth in the Civil Justice Reform Act of 1990, is based on the experiences of federal district and magistrate judges and reflects techniques they have developed. It was prepared under the direction of the Judicial Conference Committee on Court Administration and Case Management, with substantial contributions from the Administrative Office of the U.S. Courts and the Federal Judicial Center, and was approved by the Judicial Conference in March 2010. This new edition supersedes the first edition (2001) and the Manual for Litigation Management and Cost and Delay Reduction (1992).

Note: Appendices A and C of the manual including sample procedures and guidelines, orders, and other materials are only available on line and are not included in the printed manual.

Appendix A: Sample Forms 1-53 (see below)

Appendix B: Guidelines for Ensuring Fair and Effective Court-Annexed ADR, Court Administration and Case Management Committee (see Manual, p. 173)

Appendix C: Sample CM/ECF Reports (see below)

Appendix D: Bibliography (see Manual, p. 189)

Appendix E: Table of Statutes and Acts (see Manual, p. 199)

Appendix F: Table of Rules (see Manual, p. 201)

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.

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