Civil Procedure, Co-Sponsored by Litigation

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Section on Civil Procedure, Co-Sponsored by Litigation
Marina Salon E, South Tower/Level 3, San Diego Marriott Hotel & Marina

The Changing Shape of Federal Pretrial Practice

One or more presenters were selected from a call for papers.

In recent decades the role of the judge as gatekeeper in civil pretrial practice has been much discussed. To what degree should concerns over the cost of litigation prompt a judge to scrutinize the sufficiency of pleadings, to narrow discovery, and to dismiss claims on summary judgment? How involved should the judge become in controlling the case through pretrial conferences, and how vigorously should the judge promote settlement? Last term’s decisions in Bell Atlantic Corp. v. Twombly and Erickson v. Pardus address such issues in the context of the familiar – but now questioned – notice pleading standard. The 2006 e-discovery amendments to the Civil Rules highlight the cost issues that may arise when terabytes of data become the subjects of discovery requests in complex cases, but those amendments do not settle the question of how the judge should allocate those costs. The Civil Rules Committee is considering possible amendments concerning expert disclosure and discovery. To the extent that such changes permit judges to better address concerns over litigation cost, will they do so without diminishing litigation’s efficacy as a tool for exposing and redressing injustice? The judge’s role as gatekeeper may also be affected by current proposals to alter the procedures for adjudicating summary judgment motions (though not to alter the governing standard for summary judgment).

These issues form the basis for the Section’s call for papers; the papers selected – which will address these and/or other aspects of federal pretrial practice – will be presented for discussion during the Section Program.

Business Meeting at Program Conclusion.