In Younger v. Harris, the U.S. Supreme Court explained the term “federalism” as “sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.” Technically, it may be a misnomer to apply the word “federalism” to the plethora of local rules, guidelines, and protocols that federal courts throughout the country employ; though local in application, they remain federal rules. Functionally, however, ”federalism” is an apt characterization of the trend toward increasingly complex local rules and procedures that extrapolate from the nationally codified rules of procedure. The question is whether “federalism,” so understood, is a good thing.
A recent law firm blog has identified 41 federal districts that “now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information.” The author, who has catalogued these rules and provided links to them, explains that in some districts where there are no local rules or court-mandated forms, judges have taken the initiative to create their own forms and protocols for e-discovery. The proliferation of local rules—sometimes conflicting from jurisdiction to jurisdiction—seems antithetical to the mandate of Rule 1 of the Federal Rules of Civil Procedure that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Expenses go up when counsel who practice in more than one federal jurisdiction, which doubtless includes most federal civil practitioners, are required to follow multiple sets of constantly expanding, sometimes conflicting requirements attendant to discovery, pretrial, and trial practice.
In an analogous context, the evolution of an inconsistent body of federal cases on standards for electronic preservation and spoliation sanctions has sparked a move toward reform. The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States is working on a uniform rule to address preservation and spoliation. The “E-Discovery Panel” for the Advisory Committee on Civil Rules within the Rules Committee—tasked with the initial drafting of a proposal—is seeking to resolve the ambiguities and inconsistencies that have arisen in the developing case law.
These include the scope of the duty to preserve; its duration; the nature of any ongoing duty respecting information generated after the duty accrues; the elements of a proper litigation hold and its consequences; whether actions taken in furtherance of the preservation duty are protected by privilege or work-product; and critically, the consequences of failing to preserve documents. In that regard, the E-Discovery Panel is endeavoring to establish a uniform schedule of sanctions, depending on the degree of violation. The Panel is also crafting a model jury instruction on the adverse inference arising from a failure to preserve. This effort is both logical and laudable. Uniformity among the federal districts promotes efficiency, reduces costs, and decreases the risk of sanctions due to unfamiliarity with, or negligent failure to adhere to, local norms that differ from a lawyer’s home jurisdiction.
Should the same principles not hold true when it comes to inconsistent and sometimes contradictory local rules, guidelines, and protocols?
Some who are familiar with the process by which the rules are written oppose any move toward uniformity. In their view, each court should have the freedom to innovate, so long as its local rules do not conflict with the rules approved by Congress. The complaint that non-standard local rules impose an unnecessary burden is undermined by the fact that such rules are only a mouse click away—as demonstrated by the compilation referenced above. Anyone can find the local rules online and review them at the outset of the litigation. Finally, according to these observers, it would be impossible to craft a nationally uniform comprehensive set of local rules, as there is simply too much resistance among the districts.
Thus, however legitimate the criticism of non-uniformity in local rules may be, counsel should expect no change in policy for the foreseeable future.
Charles S. Fax is an associate editor for Litigation News.