Removing Unnecessary Discovery with Removal to Federal Court

I. Introduction

Given the potentially outcome altering implications the applicable rules of procedure can have on a matter, a complete understanding of the differences between the various rules of procedure that could apply to a case is an invaluable asset. A strong grasp of the difference between the procedural mechanisms available requires more than a superficial knowledge of the difference between the language used in the procedural rules of different forums. Accordingly, this paper will begin with an examination of the foundational principles and goals that result in the divergence between state and federal procedural rules. Next this paper will provide a chart explaining some of the areas where differences exist between the rules applicable in state and federal courts. Lastly, the paper will conclude with an in-depth examination of the most recent changes to the Federal Rules of Civil Procedure, their impact on the discovery process in federal court cases, and suggestions for employing the new changes for the greatest advantage.

II. Why are State and Federal Procedural Rules Different?

Analyzing the different challenges and goals that state and federal courts face can lead to a more complete understanding of the ramifications of the divergence of state and federal procedural rules. The relevance of this inquiry to the present discussion is made clear by considering the intentions of the original drafters of the first set of Federal Rules and why the outcome envisioned by those drafters failed to become a reality. 

A. Development of The Federal Rules of Civil Procedure and The Impact of the Federal Rules on State Procedure.

Prior to the adoption of the first set of Federal Rules of Civil Procedure in 1938, federal courts drew their procedural law from state in which the federal court sat, as was mandated by the federal Process Acts and Conformity Acts. The drafters of the first set of Rules of Civil Procedure envisioned that the superior clarity and functionality of the Federal Rules would result in states co-opting the Federal Rules in their entirety, thereby creating a uniform system of procedural law that would apply in every federal and state court in the country. For better or worse, the dream of state and federal procedural uniformity was never realized. Most states did not accept an outright adoption of the Federal Rules, and the minority of states that replicated the Federal Rules frequently declined to adopt the federal interpretation of similarly worded provisions.

B. Why State and Federal Procedural Rules are Becoming More Dissimilar.

In recent years the number and import of procedural differences between state and federal courts has grown at an accelerating rate. Part of the explanation for this growing uniformity gap is the increasing regularity of amendments to the Federal Rules. In the first forty-five years after the adoption of the Federal Rules, there were five substantive amendments.[1]In the last thirty-five years there have been over twenty additional substantive amendments to the Federal Rules.[2]

The impact of frequent revisions to the Federal Rules on state and federal procedural uniformity can be seen in the abundance of state rules of procedure that are identical to prior versions of the corresponding Federal Rule.[3]For example in the states that are considered “replica states” with respect to their mass adoption of most of the Federal Rules of Civil Procedure, the state rule regarding class actions reflects the Federal Rule that was in place prior to 2003, and to see the history of the development of Federal Rule 11, one need only review a handful of corresponding state procedural rules regarding sanctions, which are often identical to various past iterations of this rule.[4]While it would be easy to attribute the varying paces at which state and federal rules are amended to the bureaucratic morass inherent in the process of rules being considered, promulgated, and ultimately, adopted at the state level, it is likely that a more fundamental force is at play.

State and federal courts often face very different challenges due to large disparities in available resources and the number and complexity of cases filed. These differences in the challenges faced by state and federal courts have an impact on what reforms are considered a priority and whether reforms are best realized through amending procedural rules or allowing changes to happen through the development of case law. The varying needs for new rules between state and federal courts can also be attributed to a large disparity in the types of cases most frequently considered in those forums. The chart below compares data on the most common types of civil cases found in state and federal courts. 

Federal[5]	State[6]
1.    Tort (24% of district court filings)	1.    Contract disputes (47% of state court filings)
2. Prisoner Rights (20%)	2.    Miscellaneous civil filings[7](19%)
3. Civil Rights (12%)	3.    Small Claims (18%).
4. Contract disputes (9%)	4.    Probate (11%)
5. Social Security Claims (7%)	5.    Tort (4%)
6. Labor Disputes (6%)

While the largest percentage of filings in federal court are tort cases, in state courts, contract claims (typically debt collection cases) may account for more than half of the suits filed.[8]In addition to the disparity in types of cases, the amount at issue in cases in federal and states courts is also generally quite dissimilar. The $75,000 jurisdictional minimum in diversity cases ensures that that a large portion of the federal docket involves cases where substantial sums are in dispute. Conversely, the mean dollar amount for judgements in civil cases in state court is the relatively low figure of $9,267.[9]

The disparity in the types of cases, and corresponding issues that arise, in state and federal courts is the most likely explanation for the divergence in state and federal rules of civil procedure. Mechanisms like initial disclosures and mandatory conferences would likely be an unnecessary burden if imposed on an action to collect unpaid credit card debt. Conversely, quick disclosures and frequent judicial involvement can be instrumental in the resolution of a complicated tort case. Accordingly, when making decisions regarding which forum best suits a given case, an initial consideration of which court is likely to be best equipped to deal with the probable challenges and disputes created by the case is worthwhile.

The next section of this paper will provide an overview of areas of state and federal procedural rules that are often different and a discussion of recent changes to the Federal Rules that exemplify efforts by the current Rule drafters to expedite and economize litigation in district courts.

III. Differences Between State and Federal Rules of Civil Procedure.

The chart below provides an overview of some the most frequently found differences between the Federal Rules and their state-based counterparts:

Rule	Federal	Common State Variant
Pleading Standards	A complaint must contain factual allegations that “plausibly suggest” liability.[10]	Traditional “notice pleading” standard expressed in Conley v. Gibson.[11]
Service Requirements	Under newest amendment to FRCP 4(m), a plaintiff must serve a defendant within 90 days or risk dismissal, without prejudice, of any claim against that defendant.[12]	Significantly longer periods of time in which to perfect service.[13]
Signing and Sanctions	21-day “Safe Harbor” period before sanctions may be imposed.[14]	Significant Variance Between Jurisdictions: Kentucky: Motions for sanctions under Rule 11 may be made immediately after the violative motions is filed but ruling on such motions are postponed until a final judgment is entered.[15] Ohio: Motion requesting sanctions can be made any time during litigation and may be ruled on at any time. No “safe-harbor” period.[16]
Initial Disclosures	Required disclosure of witnesses, documents, applicable insurance policies, and computation of damages. Generally, disclosures must be made within 14 days after the initial planning conference.[17]	Relatively uncommon in state practice but some states have adopted rules similar to the federal rule.[18]
Timing of Discovery	Generally, a party is not entitled to discovery responses until the required initial planning conference has taken place.[19]	In many states, discovery requests may be propounded at the same time the complaint is filed.[20]
Limits of Discovery	Under the most recent amendments to the Federal Civil Rules, the discovery requested must be “proportional” to the needs of the case, which puts constraints on the information a party may seek.[21]	State procedural rules often permit broad and unconstrained discovery.[22]
Availability of Voluntary Dismissal	Available without leave of court prior to filing of answer. After an answer or Motion for Summary Judgment, leave of all parties or leave of the court is required.[23]	Plaintiff may dismiss at any time before trial, unless there is counterclaim that cannot remain pending for independent adjudication.[24]
Summary Judgment Standard	A movant is entitled to summary judgment under Rule 56 when the non-moving party fails to produce evidence that would allow a trier of fact to find for the non-moving party.[25]	Some states impose a more onerous burden on those seeking to resolve a case at the summary judgment stage. Indiana: Movant must “affirmatively negate an opponent’s claim” to prevail on summary judgment. [26]
Jury Size/ Verdict Requirements	A jury must be comprised of at least six, and no more than twelve, jurors. Verdicts must be unanimous.[27]	Varies by jurisdiction, but frequently less than unanimous verdicts are required.[28]
Offer of Judgment	A party defending a claim may make a formal settlement offer which if the plaintiff does not accept the offer and is unable to secure a judgment more favorable than the defendant’s offer, will result in the plaintiff becoming responsible for the cost incurred after the offer was made. [29]	Available in some states, but often with significant caveats, such as costs of attorney’s fees being recoverable only where attorney’s fees are awardable in the underlying action, or specifically allowing the recovery of expert-witness fees.[30]

 

IV. Recent Changes to The Federal Rules of Civil Procedure.

On December 1, 2015 a new round of amendments to the Federal Rules of Civil Procedure went into effect. These rules applied to all proceedings commenced after that date and apply retroactively to cases filed before the effective date “insofar as just and practicable.”[31]This set of amendments was intended to increase efficiency in litigation by imposing constraints on the discovery process and increasing the speed at which a case moves through a District Court by shortening and simplifying deadlines.

Rule 1 – Purpose of the Rules:

The overriding goal of the recent round of amendments to the Federal Rules of Civil Procedure is embodied in the amendment to Rule 1. This Rule now includes a statement that the primary purpose of the Rules is “to secure the just, speedy, and inexpensive determination of every action and proceeding.”[32]While it is unlikely that this change will have an impact on its own, the decision to include this phrase in Rule 1 sheds light on what the drafters of these amendments were trying to achieve, namely a greater emphasis on reducing the time and money expended while litigating a matter in federal court. Furthermore, this Amendment makes clear that the burden of responsibility for increasing the efficiency of the litigation process falls on litigants as well as on the court.

Rule 4 – Service:

The time allowed for perfecting service before a plaintiff risks dismissal was reduced to 120 days as part of the 2015 amendments to the Federal Rules. This period was shortened again to 90 days in a subsequent amendment that took effect in December 2017.[33]The desired impact of this Rule is clear – moving cases through a court more quickly. While the prudence of this amendment may be debated, its effectiveness in achieving the desired goal may not. With a shorter window for perfecting service, Judges will have greater leeway in dismissing unserved defendants and removing cases from their dockets.

Rule 16 and 26 – Scheduling and Disclosures:

The amendments to Rules 16 and 26 provide an additional example of how the recent changes are aimed at increasing the speed that a case moves through the litigation process. As stated in the newest Committee Notes for Rule 16, the time to issue a scheduling order is reduced by 30 days. The drafters envision that this change will work in harmony with the shorter time limit for service to reduce the overall delays at the beginning of litigation. This shorter timeline has other effects on scheduling at the beginning of the litigation process. For instance, the timing of the inter-party conference required by Rule 26(f) is tied to the date that a scheduling order is due. Thus, by reducing the due date for scheduling order, the window for conducting the 26(f) conference is also reduced. Additionally, the occurrence of the Rule 26(f) conference triggers some discovery and disclosure obligations pursuant to Rule 26(a)(1)(C).

Rule 26 – Scope of Permissible Discovery (Proportionality):

The most discussed change in the 2015 amendments to the Federal Rules was the removal of the language most frequently cited to support arguments in favor of very broad discovery. Specifically, in the portion of Rule 26 that defines the scope of discovery, the phrase “reasonably calculated to lead to the discovery of admissible evidence” was removed. In place of that language, a proportionality requirement has been added to the definition of the scope of discovery. After the 2015 amendment, Rule 26(b)(1) now states that scope of discovery is limited to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”[34]Along with adding proportionality to the definition of discovery, a list of factors that should be considered to determine whether a discovery request is “proportional to the needs of the case” was included. These factors are:

• The importance of the issues at stake
• The amount in controversy
• The parties’ relative access to the relevant information
• The parties’ resources
• The importance of the discovery in resolving the issues; and
• Whether the burden or expense of the discovery outweighs the benefit it provides.

While this amendment has produced a significant amount of discussion, it is worth noting that proportionality considerations are not a wholly new limitation on discovery in federal court. Most of the proportionality factors now listed in the definition of the scope of discovery were previously found in Rule 26(b)(2)(C). The removal of the “reasonably calculated to lead to the discovery of admissible evidence” language is likely to have a greater impact than the reinforcement of the importance of proportionality, as this language is at the root of most overly-broad discovery requests.[35]

It is important to keep in mind that no single proportionality factor is given greater weight than any other. Thus, an argument that broad discovery should be permitted simply because a substantial-sum of money is at issue is unlikely to be successful. In order to argue effectively that the scope of discovery should be enlarged or constrained, attorneys should strive to show how their proposed request or limitation accords with each of the factors to be considered. Additionally, given that the Federal Rules now explicitly authorize the use of cost-shifting orders, counselors should be mindful when trying to prevent disclosure of potentially damaging information and avoid arguments that focus too much on the fact that production could be expensive. A more effective alternative may be to include in your response alternative proposals to the form or volume of discovery requested.

Review of Cases Addressing Proportionality Considerations:

In the cases summarized below, it is clear that courts are making a concerted effort to curtail discovery abuses by addressing and balancing the Rule 26(B) proportionality considerations. Additionally, courts seem inclined to decide discovery disputes by siding with the party who does the best job of providing a detailed, factual basis for their position. In cases where one party relies on bare recitations of the rules and the opposing side provides a factual analysis of why their argument comports with the proportionality requirements, courts have not hesitated to summarily rule against the party who failed to embrace the type of fact-specific analysis the Rules encourage.[36]

Black v. Buffalo Meat Serv., Inc.[37]:

In this employment discrimination case, the Court sided with a corporate defendant over an individual plaintiff, partly because the defendant used detailed and fact specific objections to plaintiff’s discovery requests. The defendants sharply tailored objections were a stark contrast to the plaintiff’s requests, which were aimed at very broad categories of documents rather than identifiable information. The Court ultimately decided that the plaintiff’s requests were “disproportionate to the claims at issue.”

Am. Solutions LLC v. Vantiv, Inc.[38]:

The dispute in this case centered on the format in which information was produced. The plaintiff requested information in a condensed reporting format and in its original unaltered format. The defendant produced the unaltered format but refused to produce the condensed analysis, which led to a dispute. In ruling for the defendant, the Court noted that requesting that the defendant conduct analysis of the previously produced information on behalf of the plaintiff was not proportional to the needs of the case. The Court also suggested that plaintiff could obtain the information requested from the “simple step of using the sum function in Excel…” 

Wilmington Trust Co. v. AEP Generating Co.[39]:

This case sheds light on how courts are likely to view which party has the burden of addressing proportionality requirements. In ruling for the defendant, the Court noted that, based on the defendant’s representations, there was little chance that any information of importance would be discovered by expanding the scope of discovery as requested by the plaintiff. The Court also stated that while a responding party still has the initial burden of explaining why a discovery request is overly burdensome or costly, after this information is put forward, “there is no reason why both sides should not be required to address the issue of proportionality.”

Rule 34 – Production of Documents:

The major change to Rule 34 is primarily aimed at ensuring that objections to requests for production of documents are more than mere boilerplate responses, which often leave a party wondering whether documents are being withheld. Under the new version of the rule, objections to requests for production must state “with specificity the ground for objecting.”[40]  Additionally, a party who objects to a request for production must also specifically indicate whether documents are being withheld based on an objection.[41]

In keeping with the theme of this round of amendments to the Rules, this change was aimed and speeding up the discovery process by allowing parties to more quickly identify discovery disputes. By forcing parties to provide specific grounds for their objection and indicate if their objection even has an impact on whether responsive documents will be produced, it is probable that disputes on this issue will be more sharply defined from the moment they arise, which will enable courts to resolve these issues quickly.

While boilerplate objections to nearly every request for production may have been standard practice in the past, continuing such a practice will run afoul of the rules and could potentially draw the ire of a judge early in the proceedings. As one Court noted, objections that a request is overly broad, vague, or burdensome, are “meaningless” without further explanation.[42] Thus, rather than simply objecting to a request for production as being “overly-broad,” the best practice is objecting, explaining why a given request is too broad, and responding to a more reasonable version of the request. For instance, in response to a request for “any and all documents related to safety and compliance training,” an objection that the request is overly broad should be accompanied by a statement that “the request is too broad because it could be interpreted to include a request for safety and compliance training for office or maintenance positions that have no bearing on the conduct alleged to be negligent.” Furthermore, including in such a response a statement that “documents related to driver safety training and driver compliance are being produced” may ward off the filing of a motion to compel production. 

Rule 37 – Preservation of Electronically Stored Information:

The last of the major changes to the Federal Rules reflects a recognition of the ever-increasing importance of electronically stored information (“ESI”) to modern litigation. The previous version of Rule 37(e) restricted a court’s ability to impose sanctions for the failure to produce ESI that was lost as a result of routine and good faith management of a computer system. Under the new version of this Rule, courts are directed to impose sanctions in conformity with an escalating level of harshness matching the reasonable or unreasonable nature of the premature deletion of the information. Additionally, a party seeking to impose sanction on an opposing party for loss of ESI must be able to show that the loss resulted in prejudice. Even where a party can show they have been prejudiced by the loss of information, the sanction imposed should be no more onerous than what is “necessary to cure the prejudice.”[43]Furthermore, even where the irreparable destruction of ESI was intentional, as opposed to merely negligent, whether sanctions will be imposed is subject to a may not a must standard.[44]Despite these safeguards designed to prevent courts from running wild in imposing sanctions for the loss of ESI, it is still more important than ever for companies to have procedures in place for the preservation of ESI, and for attorneys to quickly and effectively communicate preservation requirements to clients.

V. Conclusion:

While the 2015 amendments to the Federal Rules are designed to increase efficiency and increase the pace of litigation, whether the specific rules of procedure available in federal court or the relevant state court provide the greatest tactical advantage will still require consideration on a case by case basis. A strong understanding of the procedural mechanisms at your disposal and the likely impact the various rules will have on a dispute should be fundamental part of the analysis of every new case.

[1]Stephen N. Subrin, The Limitations of Transsubstantive Procedure: An Essay Adjusting the “One Size Fits All” Assumption, 87 DEN. U. L. REV. 377, 480-81 (2010) (listing the years in which amendments were added to the Federal Rules of Civil Procedure).

[2]Thomas O. Main, Stephen N. Subrin,Breaking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. 501, 516 (2016).

[3]Id.

[4]Id.

[5]Patricia W. Hatamyar Moore, The Civil Caseload of the Federal District Courts, 2015 U. ILL. L. REV. 1177, 1183-84, 1198, 1208-09 (2015).

[6]NAT’L CTR. FOR STATE COURTS, Statewide Civil Caseload Composition in 26 States, (2016), http://www.courtstatistics.org/~/media/Microsites/Files/CSP/Civil/PDFs/EWSC-2016-CIVIL-Page-2-Comp-Pie.ashx.

[7]This category includes domestic relations cases, real property disputes, and various other matters that are rarely, if ever, found in federal courts.

[8]Main, supra note 2, at 524.

[9]NAT’L CTR. FOR STATE COURTS, THE LANDSCAPE OF CIVIL LITIGATION IN STATE COURTS, iii (2015), http://ncsc.org/media/files/PDF/Research/CivilJusticeReport-2015.ashx.

[10]While the language of FED. R. CIV. P. 8(a) still requires “a short and plain statement of the claim,” the Supreme Court’s rulings in Iqbal and Twombly effectively overruled the decades-old interpretation of the federal pleading standard announced in Conley v. Gibson, 335 U.S. 41 (1957). Bell Atl. Corp. v. Twobly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).

[11]Ohio Civ. R. 8(a); Wells Fargo Bank,N.A. v. Horn, 142 Ohio St.3d 416, 2015-Ohio-1484, 31 N.E.3d 637, ¶ 13.

[12]FED. R. CIV. P. 4(m).

[13]Ohio Civ. R. 4(E) (requiring service within six-months of filing of complaint).

[14]FED. R. CIV. P. 11(c)(2).

[15]Kentucky C.R. 11.

[16]Ohio Civ. R. 11.

[17]FED. R. CIV. P. 26(a)(1)(C).

[18]Compare Ohio Civil Rules, which does not contain an initial disclosure requirement; with Minnesota Gen. R. Prac. 26.01(a)(1) requiring nearly identical disclosures to those required in federal court.

[19]FED. R. CIV. P. 26(d).

[20]Ind. R. Tr. P. 26(D).

[21]FED. CIV. R. P. 26(b)(1).

[22]Ohio Civ. R. 26(B)(allowing discovery of any relevant, non-privileged, matter).

[23]FED. R. CIV. P. 41 (a)(1)(A).

[24]Ohio Civ. R. Rule 41 (A)(1).

[25]Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

[26]See Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014). This more demanding burden is imposed on movants in Indiana in spite of the fact that the Federal and Indiana rule governing Motions for Summary Judgment are nearly identical. Compare Ind. R. Tr. P. 56(C); with FED. R. CIV. P. 56(a).

[27]FED. R. CIV. P. 48. It should also be noted that parties may stipulate to accepting a non-unanimous verdict, though there is some indication that this practice is uncommon.

[28]See Ohio Civ. R. 48.

[29]FED. R. CIV. P. 68.

[30].

[31]Order (U.S. Apr. 29, 2015).

[32]FED. R. CIV. P. 1.

[33]Order (U.S. Apr. 27, 2017).

[34]Emphasis added.

[35]See Power Holding, LLC v. Malibu Boats, LLC, NO. 14-0912, 2106 WL 403650, (E.D. La. Jan. 11, 2016)(denying a motion to compel discovery that used “reasonably calculated” language).

[36]Id.

[37]No. 15-Cv-49S, 2016 WL 4363506 (W.D.N.Y. Aug. 16, 2016).

[38]2016 U.S. Dist. LEXIS 53106 (S.D. Ohio Apr. 20, 2016).

[39]2016 U.S. Dist. LEXIS 28762 (S.D. Ohio March 7, 2016).

[40]FED. CIV. R. P. 34(b)(2)(B).

[41]FED. CIV. R.  P. 34(b)(2)(C).

[42]Spencer v. City of Orlando, No. 6:15-cv-345, 2016 WL 397935 (M.D. Fla. Feb. 2, 2016).

[43]FED. R. CIV. P. 37(e).

[44]Id.